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Eduardo Vellanoweth v. Michael J. Astrue

December 6, 2010


The opinion of the court was delivered by: Marc L. Goldman United States Magistrate Judge


Plaintiff Eduardo Vellanoweth ("Plaintiff") seeks judicial `review of the Commissioner's final decision denying his application for disability insurance benefits ("DIB") pursuant to Title II of the Social Security Act. For the reasons stated below, the Commissioner's decision is affirmed.

I. Factual and Procedural Background

Plaintiff was born on September 24, 1951. (Administrative Record ("AR") at 16). He has a high school education and relevant work experience as a security guard and musician. (AR at 16).

Plaintiff filed an application for DIB on October 25, 2006, alleging that he has been disabled since July 16, 2006, due to mental problems, nervousness, panic attacks, hepatitis C, memory loss, bipolar disorder, aggression, and mood disorder. (AR at 136). The Social Security Administration denied Plaintiff's application initially and on reconsideration. (AR at 9, 68-72, 76-80).

An administrative hearing was held before Administrative Law Judge Ariel L. Sotolongo ("the ALJ") on August 20, 2008. (AR at 24-65). Plaintiff, who was represented by counsel, testified at the hearing. (AR at 28-52). A vocational expert and Plaintiff's brother also testified at the hearing. (AR at 52-65). The ALJ issued a decision on November 4, 2008, denying Plaintiff's application. (AR at 9-17). The ALJ found that Plaintiff: (1) has not engaged in substantial gainful activity since his alleged onset date of disability, (step 1); (2) suffers from the severe impairments of mood disorder, nos, and substance abuse disorder (step 2); (3) does not have any impairments that meet or equal the criteria of a listed impairment (step 3); (4) has the residual functional capacity ("RFC") to perform a full range of work at all exertional levels, but is limited to simple repetitive work with no more than occasional exposure to the general public and co-workers; (5) is unable to perform past relevant work as a security guard or musician; but (6) is capable of performing other work that exists in significant numbers in the economy. (AR at 11-12, 14, 16-17). The Appeals Council denied review on February 26, 2010. (AR at 1-4).

Plaintiff commenced this action for judicial review on April 26, 2010. The parties filed a joint statement of disputed issues on November 4, 2010. Plaintiff contends that the ALJ failed to give proper consideration to Plaintiff's credibility, lay witnesses testimony, and the opinions of Plaintiff's treating doctors. Plaintiff seeks remand for payment of benefits or, in the alternative, remand for further administrative proceedings. (Joint Stipulation at 22). The Commissioner requests that the ALJ's decision be affirmed. (Joint Stipulation at 22). The Joint Stipulation has been taken under submission without oral argument.

II. Standard of Review

Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The Commissioner's or ALJ's findings and decision should be upheld if they are free from legal error and are supported by substantial evidence based on the record as a whole. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means such evidence as a reasonable person might accept as adequate to support a conclusion. Richardson, 402 U.S. at 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It is more than a scintilla, but less than a preponderance. Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). To determine whether substantial evidence supports a finding, the reviewing court "must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). "If the evidence can reasonably support either affirming or reversing," the reviewing court "may not substitute its judgment" for that of the Commissioner. Id. at 720-721.

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A. Plaintiff's Credibility

Plaintiff contends that the ALJ erred by discounting his subjective symptom testimony. (Joint Stipulation at 4-7, 10-11). At the hearing, Plaintiff testified he had to stop working because he was going "nuts." (AR at 31). He reported experiencing daily episodes of uncontrollable rage, anxiety, nervousness, fatigue, depression, confusion, insomnia, suicidal thoughts, panic attacks, auditory hallucinations, chest pain, and shortness of breath. (AR at 32-35, 136, 147, 157). Plaintiff also complained of an inability to concentrate, difficulty driving at night, and side effects from medication, including unbearable headaches and dizziness. (AR at 44, 51, 147, 157).

The determination of credibility and the resolution of conflicts in the testimony are functions of the ALJ. Morgan v. Commissioner of Social Security, 169 F.3d 595, 599 (9th Cir. 1999). In general, an ALJ's assessment of credibility should be given great weight. Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985). However, once a claimant has presented medical evidence of an underlying impairment, the ALJ may not discredit the claimant's testimony regarding subjective pain and other symptoms merely because the symptoms, as opposed to the impairments, are unsupported by objective medical evidence. Lingenfelter, 504 F.3d at 1035-36; Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009); Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). "'[T]he ALJ can reject the claimant's testimony ...

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