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Gerber v. Astrue

September 9, 2010

CATHY GERBER, 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 application for Disability Insurance benefits ("DIB"). Plaintiff claims that the ALJ erred when she: 1) found that Plaintiff was not credible; and

2) determined that her mental impairment was not severe. (Joint Stip. at 4-16, 22-26.) For the following reasons, the Court concludes that the ALJ erred and that remand is warranted.

II. BACKGROUND

Plaintiff applied for DIB on January 23, 2006, claiming that she was disabled due to, among other things, multiple sclerosis and depression. (Administrative Record ("AR") 106-08, 116.) The Agency denied the application initially and on reconsideration. (AR 64-70, 75-79.) Plaintiff then requested and was granted a hearing before an Administrative Law Judge ("ALJ"). (AR 81-85.) On April 22, 2008, Plaintiff appeared with counsel at the hearing and testified. (AR 26-63.) On November 19, 2008, the ALJ issued a decision denying benefits. (AR 14-25.) Plaintiff appealed the ALJ's decision to the Appeals Council, which denied review. (AR 1-5, 7-11.) She then commenced this action.

III. ANALYSIS

A. The Credibility Determination

In her first claim of error, Plaintiff contends that the ALJ erred by failing to provide specific, clear, and convincing reasons for rejecting her testimony. (Joint Stip. at 4-16.) For the following reasons, the Court agrees.

ALJs are tasked with judging the credibility of witnesses.

Where, as here, 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. Smolen v. Chater, 80 F.3d 1273, 1283-84 (9th Cir. 1996). In making a credibility determination, the ALJ may take into account ordinary credibility evaluation techniques as well as the claimant's daily activities. Id. at 1284.

The essence of Plaintiff's claims is that she is unable to work due to various ailments, including "multiple sclerosis, back injury, depression, macular degeneration [. . .], neck pain, double vision, exhaustion, severe anger, confusion, numbness/tingling, paran[oia], [. . . ], severe back pain, vision problems, reading problems, communication problems, people problems[.]" (AR 116.) Plaintiff complained that her conditions limited her ability to work because of:

Stress, heat, re[petitive] motions, reading, following instructions, interaction with people, taking notes, phone numbers, names, following directions, focus, filing, concentration, learning new tasks [is] extrem[ely] difficult for me, anything demanding causes extreme stress and confusion. There are many other situations that I am unable to deal with. Any stress is bad. No short term memory. Easily confused . . .. The fatigue makes me just want to sleep. I need to rest often. The depression causes suicidal thoughts. I don't want to be left alone. My back hurts almost everyday, any time I try to do something the repeating motion makes arms, hands and legs hurt. I have frequent headaches. (AR 116.)

Plaintiff also claimed that the prescription drug Avonex, which she took once a week for her multiple sclerosis, caused flu-like symptoms, such as headaches, chills, drowsiness, and dizziness, lasting 12 to 24 hours. (AR 33, 122, 156.) She testified that she could not work because she forgets what she is doing and gets distracted, and that she drops things, such as cups and plates, all the time. (AR 34-36.) Plaintiff claimed that she gets double vision when she is tired and that "maybe once a year" she takes a course of cortisone to alleviate double vision. (AR 51-52.) She also testified that she experienced numbness or tingling in her hands or arms several times a week, and that her legs gave out, which caused her to ...


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