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Ann Graf v. Michael J. Astrue

March 11, 2011

ANN GRAF,
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 Ann Graf seeks judicial review of the Social Security Commissioner's denial of her application for Social Security Disability Insurance ("SSDI") benefits. 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 15, 1950. She completed high school and has work experience as a payroll clerk, deli coordinator/cashier and switchboard operator. (Administrative Record ("AR") 22, 23, 109.) Plaintiff filed her application for SSDI benefits on October 10, 2006, alleging disability beginning September 22, 2005, due to fibromyalgia, back and neck pain, ringing in the ears, dizziness and headaches. (AR 32.) Her application was denied initially on June 26, 2007, and upon reconsideration on October 4, 2007. (AR 33-36, 38-42.) An administrative hearing was held on June 2, 2008, before Administrative Law Judge ("ALJ") F. Keith Varni. Plaintiff was represented by counsel and testified on her own behalf. (AR 20-30.)Neither a medical expert nor a vocational expert testified at the hearing.

ALJ Varni issued an unfavorable decision on June 30, 2008. (AR 10-17.) The ALJ found that Plaintiff had not engaged in substantial gainful activity since the alleged onset date, and that Plaintiff suffered from a severe impairment of the musculoskeletal system and obesity. (AR 12.) The ALJ determined that 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.(AR 13.) The ALJ concluded that Plaintiff could return to her past relevant work as a payroll clerk and was therefore not disabled under the Social Security regulations. (AR 16-17.)

The Appeals Council denied review on June 23, 2010, and Plaintiff timely commenced this action for judicial review. On March 4, 2011, the parties filed a Joint Stipulation ("Joint Stip.") of disputed facts and issues, including the following claims of error: (1) the ALJ failed to provided sufficient reasons for rejecting Plaintiff's testimony; (2) the ALJ failed to provide legally sufficient reasons for rejecting the opinion of Plaintiff's treating physician, Dr. Stephen Owen; (3) the ALJ failed to provide legally sufficient reasons for rejecting the opinion of Plaintiff's treating physician, Dr. Raj Karnani; and (4) the ALJ did not correctly employ the standards set out in 20 C.F.R. § 404.1527 when weighing the medical opinions. (Joint Stip. 3.) Plaintiff asks the Court to reverse and order an award of benefits. (Joint Stip. 31.) The Commissioner requests that the ALJ's decision be affirmed, or in the alternative, remanded for further administrative proceedings. (Joint Stip. 31-32.)

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 for discrediting her subjective symptom testimony. (Joint Stip. 3.) At the hearing, Plaintiff testified that her impairments cause constant pain, achiness throughout her body, constant headaches, and irritability. She testified that she has difficulty sleeping and can only sleep from five to seven hours per night if she takes sleep medication. (AR 26.) She also testified that she suffers from various side effects from her pain medication, including being light-headed and dizzy. Some days she could not get out of bed because of the pain. (AR 23-24.) In addition, Plaintiff said that she is able to sit for 15 or 20 minutes on average, stand for approximately 5 or 10 minutes and lift no more than approximately eight pounds. (AR 25-26.)

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)).*fn1

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). The ALJ may also consider an unexplained failure to seek treatment or follow a prescribed course of treatment and employ other ordinary techniques of credibility evaluation. Id. (citations omitted).

Here, the ALJ concluded that Plaintiff's medically determinable impairments could "produce some of the alleged symptoms." (AR 14.) However, the ALJ rejected Plaintiff's description of her symptoms "to the extent they are inconsistent" with the ALJ's assessment that Plaintiff retained the residual functional capacity ("RFC") to perform her past relevant work as a payroll clerk. (Id.) Essentially, this means that the ALJ rejected Plaintiff's testimony that she suffers from chronic pain, headaches, and dizziness, and that she is limited in her ability to walk, sit, stand, and lift more than ...


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