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Aureliano Retana v. Michael J. Astrue

February 24, 2011

AURELIANO RETANA,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION,
DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

Plaintiff Aureliano Retana seeks judicial review of the Commissioner's final decision denying his application for Social Security Disability Insurance ("SSDI") benefits. For the reasons set forth below, the final decision of the Commissioner is affirmed.

I. Background

Plaintiff filed his application for SSDI benefits on November 29, 2007, alleging disability as of August 24, 2007 due to discogenic and degenerative disorders of the back, a stomach injury, and nerve damage to the left leg. (Administrative Record ("AR") 9, 53, 92.) Plaintiff was born on January 7, 1975 and was 34 years old at the time of the administrative hearing. (AR 53, 103.) He completed high school and has worked as a truck driver and security guard. (AR 14, 108, 113.) Plaintiff's application was denied initially on April 3, 2008. (AR 57-61.) An administrative hearing was held on October 15, 2009 before Administrative Law Judge ("ALJ") Robert S. Eisman. Plaintiff, represented by counsel, testified, as did a vocational expert ("VE"). (AR 19-52.)

On November 6, 2009, ALJ Eisman denied Plaintiff's application for benefits. (AR 9-16.) The ALJ found that Plaintiff had not engaged in substantial gainful activity since the alleged onset date. (AR 11.) The ALJ further found that Plaintiff had the following severe impairments: lumbar spine degenerative disc disease, lower left extremity quadracep numbness with possible neuralgia paresthesia, diabetes mellitus II, status post inguinal hernia repair in 2007 and abdominal hernia repair in 2008, and obesity. (Id.) However, the ALJ determined that Plaintiff's impairments did not meet and were not medically equal to, one of the listed impairments in 20 C.F.R., Part 404, Subpart P, Appendix 1. (AR14.)

The ALJ also determined that Plaintiff retained the residual functional capacity ("RFC") to "perform light work as defined in 20 C.F.R. 404.1567(b), in that he can exert up to 20 pounds of force occasionally and/or up to 10 pounds of force frequently and/or a negligible amount of force constantly to move objects .... The claimant can perform work that does not require climbing ladders, ropes or scaffolds, and no more than occasional climbing of ramps or stairs. He can also perform work that requires no more than occasional balancing, stooping, kneeling, crouching, or crawling. The claimant can occasionally operate foot controls with the left lower extremity. He can perform work that does not involve concentrated exposure to extreme vibration, hazardous machinery, unprotected heights, or other high risk, hazardous or unsafe conditions." (AR 12.) The ALJ found that Plaintiff was able to perform his past relevant work as a security guard. (AR 14.) The ALJ also found, based upon the testimony of the VE, that Plaintiff was capable of performing various jobs that exist in significant numbers in the national economy. (AR 15.) Therefore, the ALJ concluded that Plaintiff was not disabled within the meaning of the Social Security Act. 20 C.F.R. § 416.920(f). (Id.)

On July 22, 2010, the Appeals Council denied review (AR at 1-3), and Plaintiff timely commenced this action for judicial review. On February 17, 2011, the parties filed a Joint Stipulation ("Joint Stip.") of disputed facts and issues, in which Plaintiff claims that the ALJ failed to make proper credibility findings and to consider Plaintiff's subjective symptoms. (Joint Stip. 2.) Plaintiff asks the Court to reverse and order an award of benefits, or in the alternative, remand for further proceedings. (Joint Stip. 13-14.) The Commissioner requests that the ALJ's decision be affirmed. (Joint Stip. 14-15.)

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 decision must be upheld unless "the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole." Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1990); 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 v. Perales, 402 U.S. 389, 401 (1971); Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). It is more than a scintilla, but less than a preponderance. 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 support either affirming or reversing the ALJ's conclusion," the reviewing court "may not substitute its judgment for that of the ALJ." Robbins, 466 F.3d at 882.

III. The ALJ Properly Assessed Plaintiff's Credibility

Plaintiff contends that the ALJ erred by failing to provide clear and convincing reasons for discrediting his testimony regarding his subjective symptoms. (Joint Stip. 3.) The ALJ found that Plaintiff was not fully credible for the following reasons: (1) the objective medical evidence did not support impairments likely to produce disabling pain or limitation and (2) Plaintiff's self-reported ability to perform certain activities of daily living was at odds with the alleged severity of his impairment. (AR 13-14.)

When deciding whether to accept the testimony of a claimant, the ALJ must perform a two-step analysis. At the first step, the claimant must produce objective medical evidence of one or more impairments, and show that the impairment or combination of impairments could reasonably be expected to produce some degree of symptom. Smolen v. Chater, 80 F.3d 1273, 1281-1282 (9th Cir. 1996) (citing Cotton v. Bowen, 799 F.2d 1403 (9th Cir. 1986)). The claimant is not required to produce objective medical evidence of the symptom itself or the severity of the symptom.

Smolen, 80 F.3d at 1282 (citing Bunnell, 947 F.2d at 347-348). At the second step of the analysis, the ALJ must assess the credibility of the claimant's testimony regarding the severity of his symptoms. If there is no affirmative evidence of malingering, the ALJ may reject the claimant's testimony only if the ALJ makes specific findings giving clear and convincing reasons for the rejection, including which testimony is not credible and what facts in the record lead to that conclusion. Id. at 1284 (citing Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993)).

The ALJ gave specific reasons for finding that Plaintiff's subjective testimony was not entirely credible, each of which is fully supported by the record. First, the ALJ noted that the objective medical evidence did not support Plaintiff's allegations of disabling symptoms. (AR 13.) Plaintiff alleged disabling pain in his left thigh and back. As the ALJ noted, although an MRI of Plaintiff's lumbar spine taken in October 2007 showed some degenerative disc dessication, a subsequent EMG and Nerve Conduction Study performed on November 19, 2007 was normal. (AR 13, 212.) In addition, an x-ray of the lumbar spine and a lumbar MRI performed on April 14, 2009 showed no disc bulges, spinal canal stenosis or neural foraminimal narrowing, while an x-ray of the left knee was normal with no evidence of fracture or dislocation. (AR 13-14, 370-371, 376.) Thus, it was proper for the ALJ to note that the alleged symptoms were disproportionate to the clinical and diagnostic findings. See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) ("While subjective pain testimony ...


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