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Elizabeth A. Jones v. Michael J. Astrue

February 25, 2011

ELIZABETH A. JONES,
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 Elizabeth Jones seeks judicial review of the Social Security Commissioner's denial of her application for Social Security Disability Insurance benefits ("SSDI") and Supplemental Security Income benefits("SSI") pursuant to Titles II and XVI of the Social Security Act. For the reasons stated below, the decision of the Commissioner is reversed, and the matter is remanded for an award of benefits.

I. Facts and Procedural Background

Plaintiff was born on August 1, 1954. She completed high school and some college and has worked as a help desk supervisor, travel agent, and officer manager. (Administrative Record ("AR") at 145-52, 196.) Plaintiff filed applications for SSDI and SSI on August 21, 2006, alleging disability as of August 21, 2003, due to fibromyalgia, chronic pain, and Epstein Barr Virus. (AR at 146.) Her application was denied initially and upon reconsideration. (AR at 84, 89.) An administrative hearing was held on August 4, 2008, before Administrative Law Judge ("ALJ") Joel B. Martinez. (AR at 22-76.) Plaintiff was represented by counsel and testified on her own behalf. Medical expert Dr. David Brown and vocational expert ("VE") Rita King also testified at the hearing. (Id.)

ALJ Martinez issued an unfavorable decision on August 29, 2008. (AR at 13-21.) The ALJ found that Plaintiff had not engaged in substantial gainful activity from the alleged onset date through her date last insured of December 31, 2008, and that Plaintiff suffered from the following severe impairments: Epstein Barr Virus, fibromyalgia, and depression. (AR at 15.) These severe impairments, alone or in combination, did not meet the requirements of a listed impairment found in 20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ determined that Plaintiff could not return to her past relevant work, but retained the residual functional capacity ("RFC") to perform light work,*fn1 "except that she can perform postural activities occasionally, cannot work at heights or around dangerous equipment, cannot be exposed to concentrated fumes, dust, gases, cannot be exposed to extreme temperatures, and can perform simple work." (AR at 15-19.) Finally, the ALJ determined that Plaintiff was not disabled because there were a significant number of jobs in the national and local economy that Plaintiff could perform based on the testimony of the VE. (AR at 19-20.)

The Appeals Council denied review on April 8, 2010, and Plaintiff commenced this action on June 7, 2010. Plaintiff contends that the ALJ (1) failed to provide clear and convincing reasons for discrediting her subjective symptom testimony, and (2) erred in failing to find that chronic fatigue syndrome was a severe impairment. (Joint Stip. at 3.)

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 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 (9th Cir. 1999); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means more than a scintilla, but less than a preponderance; it is evidence that a reasonable person might accept as adequate to support a conclusion. Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007)(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 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. Discussion

A. The ALJ Improperly Rejected Plaintiff's Subjective Symptom Testimony

Plaintiff contends that the ALJ failed to provide clear and convincing reasons to discredit her subjective symptom testimony. At the hearing, Plaintiff testified that her impairments cause nausea, achiness throughout her body, irritable bowel, neuropathy in her hands and feet, and chronic pain, especially in her seat, back, and the bottoms of her feet. (AR at 43, 48-50.) She takes two to three Vicodin per day on average and suffers from significant fatigue such that she "can sleep for 14 hours and wake up exhausted." (AR at 52.) In addition, Plaintiff testified that she experiences confusion and brain fog, which she described as not being able to think of words or trying to say something and having it come out wrong. (AR at 52-53.) Plaintiff testified that she can stand for five minutes, sit for approximately 20 minutes, and lift 10 pounds. (AR at 45.)

Plaintiff further testified that she lives with her elderly father and her 28-year-old son. She wakes up between 11:00 a.m. and noon, but does not get moving until about 2:00 p.m. or 3:00 p.m. (AR at 46, 52.) Once she's up, she may do a load of laundry or fix dinner for her father. She also watches her father take his medication and watches him walk in the yard to ensure he does not wander off or try to drive. (AR at 46.) Visiting nurses have come to the home when her father has needed "injections and different things," and someone comes to clean the house every two weeks. (AR at 47.)

To determine whether a claimant's testimony about subjective pain or symptoms is credible, an ALJ must engage in a two-step analysis. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (citing Lingenfelter 504 F.3d at 1035-36). First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment which could reasonably be expected to produce the alleged pain or other symptoms. Lingenfelter, 504 F.3d at 1036. "[O]nce the claimant produces objective medical evidence of an underlying impairment, an adjudicator may not reject a claimant's subjective complaints based solely on a lack of objective medical evidence to fully corroborate the alleged severity of pain." Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (en banc). To the extent that an individual's claims of functional limitations and restrictions due to alleged pain is reasonably consistent with the objective medical evidence and other evidence in the case, the claimant's allegations will be credited. SSR 96-7p, 1996 WL 374186 at *2 (explaining 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4)).*fn2

Unless there is affirmative evidence showing that the claimant is malingering, the ALJ must provide specific, clear and convincing reasons for discrediting a claimant's complaints. Robbins, 466 F.3d at 883. "General findings are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints." Reddick, 157 F.3d at 722 (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996)). The ALJ must consider a claimant's work record, observations of medical providers and third parties with knowledge of claimant's limitations, aggravating factors, functional restrictions caused by symptoms, effects of medication, and the claimant's daily activities. Smolen v. Chater, 80 F.3d 1273, 1283-84 & n.8 (9th Cir. 1996). ...


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