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Sharon Clarendon v. Michael J. Astrue

January 10, 2011


The opinion of the court was delivered by: David T. Bristow United States Magistrate Judge


Plaintiff filed a complaint ("Complaint") on June 18, 2009, seeking review of the Commissioner's denial of her application for disability insurance benefits. The matter was transferred to this Court's calendar on July 1, 2009. Now pending before the Court are plaintiff's Motion for Summary Judgment for Remand or Reversal ("Pl. Mot.") and defendant's Cross-Motion for Summary Judgment and Opposition to Plaintiff's Motion for Summary Judgment ("Def. Mot."). For the reasons discussed below, the Court reverses the decision of the Commissioner and remands for further administrative proceedings.


As reflected in the parties' motions, the disputed issues here are as follows:

1. Whether the Administrative Law Judge ("ALJ") properly considered plaintiff's testimony and made proper credibility findings.

2. Whether the ALJ properly considered the consultative examiner's opinion.

3. Whether the ALJ erred in finding that plaintiff could perform the job of table worker and hand packager.

4. Whether the ALJ posed a complete hypothetical question to the vocational expert.


I. Reversal is not warranted based on the ALJ's alleged failure to properly consider plaintiff's testimony.

The ALJ found plaintiff's "medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, her statements concerning the intensity, persistence, and limiting effects of these symptoms are not credible to the extent they are inconsistent with the . . . residual functional capacity assessment." (Administrative Record ["AR"] 517.) The ALJ also found petitioner's testimony at the remand hearing to be not credible "to the extent it is not consistent with the findings herein above since it is not supported by the objective medical findings, the intensity of her medical treatment, or the severity of symptoms reported to the treating sources." (AR 518.) Based upon this assessment of plaintiff's credibility, plaintiff argues in Issue No. 1 that the ALJ improperly found that she lacked credibility. Specifically, plaintiff asserts that "the ALJ alleged that the plaintiff's testimony is 'not supported by the objective medical evidence,' yet the ALJ failed to cite any specific evidence or exhibits to support his holding." (Pl. Mot. at

3.) Further, plaintiff asserts that "the ALJ selectively cited only those parts of the plaintiff's testimony that supported his own conclusion but failed to cite those parts of her testimony that are favorable to plaintiff." (Pl. Mot. at 3-4.)

An adverse finding of credibility must be based upon clear and convincing evidence absent affirmative evidence of malingering and "[w]here the record includes objective medical evidence establishing that the claimant suffers from an impairment that could reasonably produce the symptoms of which he complains." Carmickle v. Comm'r of Soc. Sec. Admin., 533 F.3d 1155, 1160 (9th Cir. 2008). The ALJ may not discredit a claimant's testimony as to the severity of symptoms simply because they are unsupported by objective medical evidence. See Bunnell v. Sullivan, 947 F.2d 341, 347-48 (9th Cir. 1991). In addition, the ALJ "must identify what testimony is credible and what evidence undermines the claimant's complaints." Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995); see also Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). A credibility finding must be "sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit [the] claimant's testimony." Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002). Factors that may be considered include: (1) The claimant's reputation for truthfulness, (2) inconsistencies in testimony or between testimony and conduct; (3) the claimants daily activities; (4) an unexplained, or inadequately explained, failure to seek treatment or follow a prescribed course of treatment and (5) testimony from physicians concerning the nature, severity, and effect of the symptoms of which the claimant complains. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989); see also Thomas, 278 F.3d at 958-59. The ALJ considered many of these factors when he determined that plaintiff's statements "concerning the intensity, persistence, and limiting effects of [her] symptoms" were not credible. First, the ALJ considered the medical evidence and the extent to which it supported plaintiff's claimed severity of symptoms. With respect to plaintiff's alleged pain, the ALJ adopted as the residual functional capacity ("RFC") the limitations assessed by the consultative orthopedic medical examiner, Dr. Bunsri T. Sophon. (AR 558-63.) Dr. Sophon conducted a physical examination of plaintiff and diagnosed her with the following conditions: (1) Cervical disc disease, status post anterior C4, C5, C6, and C7 spinal fusion; (2) lumbosacaral strain;

(3) impingement syndrome, status post arthrotomy and decompression, left shoulder; and (4) medial epicondylitis, left elbow, status post surgical release. (AR 556.) Dr. Sophon noted that plaintiff demonstrated "non-painful restriction of motion of the cervical and lumbar spine," as well as "painful restriction of motion of the left shoulder, and weakness of the left minor hand grip." (AR 556.) With regard to plaintiff's ability to work, Dr. Sophon opined: (1) Plaintiff could lift and carry 20 pounds occasionally and 10 pounds frequently; (2) plaintiff was limited to frequent reaching, with no above-shoulder-level work activity with the left arm; and (3) plaintiff was restricted to sitting, standing, and walking six hours of an eight-hour work day. (AR 556-63). Additionally, the ALJ noted, "there is no evidence of new medical opinions in the recorded [sic] other than Dr. Ahmed's finding of 'total temporary disabled,' i.e., the inability to perform past relevant work, which is not at issue in this case . . . there has been no changes [sic] to [plaintiff's] medical condition[.]" (AR 517.)

The ALJ also found that plaintiff's level of activity was not consistent with her claim of disability. The ALJ noted, "[plaintiff] denied any productive activity and said she had to lie down all day. She admitted that she does drive and that she had renewed her California Drivers Licence in 2008 without restriction and that she had resumed getting workers' compensation benefits in August 2008[.]" (AR 518.) In Thomas, the claimant's ability to perform household chores was considered as inconsistent with the claimant's subjective complaints and as a basis for finding that she lacked credibility with respect to her descriptions of pain. Thomas, 278 F.3d at 959. Here, the ALJ's finding that the description of pain was inconsistent with her ability to drive and renew her driver's license without ...

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