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Janice L. Person v. Michael J. Astrue

February 10, 2011

JANICE L. PERSON, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: VICTOR B. Kenton United States Magistrate Judge

MEMORANDUM OPINION AND ORDER (Social Security Case)

This matter is before the Court for review of the decision by the Commissioner of Social Security denying Plaintiff's application for disability benefits. Pursuant to 28 U.S.C. §636(c), the parties have consented that the case may be handled by the Magistrate Judge. The action arises under 42 U.S.C. §405(g), which authorizes the Court to enter judgment upon the pleadings and transcript of the record before the Commissioner. The parties have filed the Joint Stipulation ("JS"), and the Commissioner has filed the certified Administrative Record ("AR").

Plaintiff raises the following issues:

1. Whether the Administrative Law Judge ("ALJ") properly evaluated Plaintiff's excess pain testimony; and

2. Whether the ALJ properly evaluated Plaintiff's past relevant work.

(JS at 3.)

This Memorandum Opinion will constitute the Court's findings of fact and conclusions of law. After reviewing the matter, the Court concludes that the decision of the Commissioner must be affirmed.

I THE ALJ PROPERLY EVALUATED PLAINTIFF'S CREDIBILITY AS TO EXCESS PAIN TESTIMONY

At the hearing before the ALJ, held on September 9, 2008 (AR 20-46), Plaintiff appeared and testified. As summarized by the ALJ, she testified that she experiences severe lower back pain and must sit with her legs raised. She has significant problems sitting, standing and walking, and in fact, can only stand for ten minutes and can barely walk. She believes she could carry about 15 pounds. (AR 18.) Considering this evidence, and the other evidence in the record, the ALJ found that Plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, her symptoms as to intensity, persistence and limiting effects were found to be not credible to the extent they are inconsistent with the Residual Functional Capacity ("RFC") assessed by the ALJ. (AR 18.) The RFC assesses that Plaintiff can perform light work with certain exceptions which limit her to occasionally climbing stairs, ladders or scaffolding, and occasionally bending, balancing, stooping, kneeling, crouching, or crawling. (AR 15.)

In assessing Plaintiff's credibility, the ALJ set forth the credibility assessment factors described in Social Security Ruling ("SSR") 96-7p. (AR 16.)

Plaintiff asserts that "while the ALJ's rationale has some credence prior to early 2007, it does not have credence thereafter." (JS at 10.)

It is well established that the ALJ must articulate clear and convincing reasons for rejecting pain and limitation testimony. See Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993).

The ALJ relied upon four factors as articulated in the decision to discount Plaintiff's credibility. The Court will examine these to determine if they constitute clear and convincing reasons.

The ALJ first found that the medical evidence of record did not support the degree of pain and dysfunction ...


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