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Alva v. Astrue

August 13, 2010

BENITA R. ALVA, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Andrew J. Wistrich United States Magistrate Judge

MEMORANDUM OF DECISION

Plaintiff filed this action seeking reversal of the decision of defendant, the Commissioner of the Social Security Administration (the "Commissioner"), denying plaintiff's application for supplemental security income ("SSI") benefits. The parties have filed a Joint Stipulation ("JS") setting forth their contentions with respect to each disputed issue.

Administrative Proceedings

Plaintiff filed her current benefits application in October 2004. She alleged that she had been disabled since May 2004 due to breast cancer and the side effects from radiation and chemotherapy. [Administrative Record ("AR") 360-362, 363-364]. In a February 23, 2007 written hearing decision that constitutes the Commissioner's final decision in this matter, an administrative law judge ("ALJ") found that plaintiff had the following impairments that were severe in combination: an adjustment order, depressed; questionable obesity; hypertension; hypercholesterolemia; and a history of breast cancer (status post partial mastectomy on September 23, 2004 followed by chemotherapy and radiation ending on October 19, 2005). [AR 24]. The ALJ determined that plaintiff retained the residual functional capacity ("RFC") to perform light work. The ALJ concluded that plaintiff was not disabled because her RFC did not preclude her from performing jobs existing in significant numbers in the national economy.*fn1 [JS 2-3; AR 21-32].

Standard of Review

The Commissioner's denial of benefits should be disturbed only if it is not supported by substantial evidence or is based on legal error. Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). "Substantial evidence" means "more than a mere scintilla, but less than a preponderance." Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005). "It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)(internal quotation marks omitted). The court is required to review the record as a whole and to consider evidence detracting from the decision as well as evidence supporting the decision. Robbins v. Soc. Sec. Admin, 466 F.3d 880, 882 (9th Cir. 2006); Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas, 278 F.3d at 954 (citing Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir.1999)).

Discussion

Changed Circumstances

By way of background, the court notes that the prior, final decision denying benefits bars reconsideration plaintiff's disability through July 3, 2002, the date of that prior decision. See Lester v. Chater, 81 F.3d 821, 827 (9th Cir. 1995) (holding that res judicata barred reconsideration of claim for period with respect to which a final determination had already been made); Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988) (noting that the principles of res judicata apply to administrative decisions). The prior adverse decision also creates a rebuttable presumption that plaintiff continued to be able to work after that date. See Lester, 81 F.3d at 827; Lyle v. Sec'y of Health & Human Servs., 700 F.2d 566, 567 (9th Cir. 1983).

The presumption of continuing non-disability may be overcome by a showing of "changed circumstances," such as new facts establishing a previously unlitigated impairment. See Lester, 81 F.3d at 827-828; Chavez, 844 F.2d at 693. In this case, the ALJ found that plaintiff had rebutted the presumption by showing changed circumstances in the form of a new, medically determinable impairment, breast cancer, which was diagnosed after the date of the prior adverse decision. [AR 22]. Accordingly, the ALJ did not apply the presumption of continuing non-disability.

Credibility Finding

Plaintiff's sole contention is that the ALJ failed to provide legally sufficient reasons for rejecting the alleged severity of plaintiff's subjective complaints. [See JS 4-22]. More specifically, plaintiff argues that the ALJ wrongly concluded that "the objective medical evidence did not support the level of limitation [plaintiff] describes," and that her daily activities were inconsistent with disability. [JS 7]. Plaintiff also contends that the ALJ's finding that plaintiff's symptoms from breast cancer and breast cancer treatment did not persist for twelve consecutive months is not based on substantial evidence in the record. [JS 8-13].

Once a disability claimant produces evidence of an underlying physical or mental impairment that is reasonably likely to be the source of his or her subjective symptoms, the adjudicator is required to consider all subjective testimony as to the severity of the symptoms. Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004); Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (en banc); see also 20 C.F.R. §§ 404.1529(a), 416.929(a) (explaining how pain and other symptoms are evaluated). Although the ALJ may then disregard the subjective testimony he considers not credible, he must provide specific, convincing reasons for doing so. Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001); see also Moisa, 367 F.3d at 885 (stating that in the absence of evidence of malingering, an ALJ may not dismiss the subjective testimony of claimant without providing "clear and convincing reasons"). The ALJ's credibility findings "must be sufficiently specific to allow a reviewing court to conclude the ALJ rejected the claimant's testimony on permissible grounds and did not arbitrarily discredit the claimant's testimony." Moisa, 367 F.3d at 885; see Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997) (enumerating factors that bear on the credibility of subjective complaints); Fair v. Bowen, 885 F.2d 597, 604 n.5 (9th Cir. 1989)(same). If the ALJ's assessment of the claimant's testimony is reasonable and is supported by substantial evidence, it is not the court's role to "second-guess" it. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001).

Plaintiff's Testimony

In her disability reports, plaintiff asserted that she could not work due to the side effects of chemotherapy and radiation. She complained of extreme fatigue, weakness, nausea, soreness throughout her body, loss of appetite, a tingling sensation on her scalp, uncontrolled high blood pressure, drowsiness and blurred vision as side effects of her medications, and a rapid heartbeat. [AR 363-364, 373, 376-377].

Two administrative hearings were conducted in this case, the first in July 2006 [AR 813-820], and the second in October 2006. [AR 821-847]. Plaintiff was represented by counsel during both hearings, and she testified on her own behalf. A different vocational expert testified at each hearing. [AR 818, 841].

Plaintiff was 52 years old at the time of the first hearing, and 53 years old at the time of the second hearing. [AR 815, 841]. She had a high-school diploma and attended college for about a year. [AR 814-815]. Plaintiff testified that she had last worked in 1996 or 1997. Her last two jobs were part-time jobs, one in a stationery store and the other in a Christian bookstore. [AR 815-816].

Plaintiff testified that she was diagnosed with breast cancer in May 2004, which is the alleged date of onset of her disability. She said that she had been "extremely sick for about a month and a half" before she was diagnosed. [AR 825]. Plaintiff testified that she underwent a partial mastectomy or "lumpectomy" in September 2004. [AR 825]. She also testified that beginning in February 2005, she underwent six cycles of chemotherapy, receiving an infusion every three weeks. [AR 826-827]. Plaintiff said that early during the course of chemotherapy, she developed back pain that did not resolve when she finished chemotherapy and still bothered her. [AR 827-828]. Asked if she had other symptoms associated with chemotherapy, plaintiff said that she was nauseous, had "a really hard time sleeping," had feelings of paranoia, and "a lot of tingling . . . in my body." [AR 828]. The symptoms would strike "really ...


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