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Tammy A. Stanley v. Michael J. Astrue


March 15, 2011


The opinion of the court was delivered by: Honorable Oswald Parada United States Magistrate Judge


The Court now rules as follows with respect to the disputed issue listed in*fn1 the Joint Stipulation ("JS").*fn2


As reflected in the Joint Stipulation, the disputed issue which Plaintiff raises as the ground for reversal and/or remand is whether the Administrative Law Judge ("ALJ"), F. Keith Varni, properly considered Plaintiff's subjective symptom testimony. (JS at 4.)


Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether the Commissioner's findings are supported by substantial evidence and whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means "more than a mere scintilla" but less than a preponderance. Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971); Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401 (citation omitted). The Court must review the record as a whole and consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 1986). Where evidence is susceptible of more than one rational interpretation, the Commissioner's decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984).


A. The ALJ's Findings.

The ALJ found that Plaintiff has the severe impairment of recurrent herniated L5-S1 disc with left sciatica. (AR at 19.) He found Plaintiff had the residual functional capacity ("RFC") to perform light work with the following limitations: lift and/or carry twenty pounds occasionally and ten pounds frequently; stand and/or walk six hours in an eight-hour workday, but should limit walking on uneven terrain to two hours in an eight-hour workday; sit six hours in an eight-hour workday; no push and/or pull limitations; occasionally climb ramps and stairs, but never climb ladders, ropes, or scaffolds; occasionally balance, stoop, kneel, crouch, and crawl; and avoid concentrated exposure to extreme cold and vibration. (Id.) He found that the limitations would have little or no effect on the occupational base of unskilled light work. He also found that notwithstanding the limitations and restrictions, there are a substantial number of jobs in the national economy Plaintiff can perform. (Id. at 22-23.)

B. The ALJ Failed to Properly Consider Plaintiff's Subjective Complaints.

Plaintiff contends that the ALJ failed to articulate sufficient reasons for rejecting Plaintiff's testimony. (JS at 4-11, 16-17.) The Court agrees.

1. Applicable Law.

An ALJ's assessment of pain severity and claimant credibility is entitled to "great weight." Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1986). When, as here, an ALJ's disbelief of a claimant's testimony is a critical factor in a decision to deny benefits, the ALJ must make explicit credibility findings. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990); Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981); see also Albalos v. Sullivan, 907 F.2d 871, 874 (9th Cir. 1990) (an implicit finding that claimant was not credible is insufficient).

Under the "Cotton test," where the claimant has produced objective medical evidence of an impairment which could reasonably be expected to produce some degree of pain and/or other symptoms, and the record is devoid of any affirmative evidence of malingering, the ALJ may reject the claimant's testimony regarding the severity of the claimant's pain and/or other symptoms only if the ALJ makes specific findings stating clear and convincing reasons for doing so. See Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986); see also Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993); Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir. 1991).

To determine whether a claimant's testimony regarding the severity of his symptoms is credible, the ALJ may consider the following evidence: (1) ordinary techniques of credibility evaluation, such as the claimant's reputation for lying, prior inconsistent statements concerning the symptoms, and other testimony by the claimant that appears less than candid; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; (3) the claimant's daily activities; and (4) testimony from physicians and third parties concerning the nature, severity, and effect of the claimant's symptoms. Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002); see also Smolen, 80 F.3d at 1284. SSR 96-7p further provides that an individual may be less credible for failing to follow prescribed treatment without cause. SSR 96-7p. "[A]ffirmative evidence suggesting" that a claimant is malingering vitiates the applicability of a clear and convincing standard of review. Smolen, 80 F.3d at 1283-84; see also Schow v. Astrue, 272 Fed. App'x. 647, 651, 654-55 (9th Cir. 2008).

2. Analysis.

Plaintiff testified at the hearing that the back surgery she had in May of 2007 did not help her at all. (Id. at 246.) Although she had been told she needs additional surgery -- a fusion -- she stated she is "really scared to do it because with the hardware they said it's a good possibility I can go paralyzed from it." (Id. at 247.) She stated that her physical therapist told her that therapy was not for her because the therapy was "hurting worse." (Id.) Although she had three epidurals, they had not helped at all, and any relief was temporary. (Id.) She testified that she was not able to work anymore, used to take care of her husband and used to make patio furniture, but now "it's even hard for me to do my own housework." (Id. at 248.) Her daughter helps her "a lot" by going grocery shopping, doing housework, and preparing meals three times a week. (Id.) She "sometimes . . . can't even drive because of leg pain." (Id.) She testified she walks with the grandchildren and use a cane that the therapist gave her. (Id.) She tries to "do some light housework" daily, and sometimes cooks. (Id. at 252-53.) She did not think she could do even a sit-down job for two hours a day with no lifting over ten pounds because she gets "really stiff" sitting. (Id. at 248-249.) Neurontin and Motrin help her pain "[a] little bit." (Id. at 251.)

The ALJ found that Plaintiff's medical impairments could reasonably be expected to produce the alleged symptoms. (Id. at 20.) Therefore, he was required to provide specific, clear and convincing reasons for rejecting Plaintiff's subjective allegations of pain and functional limitations. In his decision the ALJ stated as follows:

I must evaluate the intensity, persistence, and limiting effects of the claimant's symptoms to determine the extent to which they limit the claimant's ability to do basic work activities. For this purpose, whenever statements about the intensity, persistence, or functionally limiting effects of pain or other symptoms are not substantiated by objective medical evidence, I must make a finding on the credibility of the statements based on a consideration of the entire case record.

After careful consideration of the evidence, I find that the claimant's medically determinable impairment could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with the above residual functional capacity assessment.

I give greatest weight to the medical source opinions of the State Agency reviewing physicians as they are familiar with Social Security disability laws and had an opportunity to review the evidence. Their assessment of the claimant's functional limitations is consistent with the evidence of record. They gave the claimant the benefit of the doubt by generously considering her subjective complaints of back and leg problems.

. . . . . . . The additional non-exertional limitations included in the residual functional capacity give the claimant the benefit of the doubt by generously considering her subjective pain complaints.

. . . Although the claimant is not fully credible, I have generously considered his [sic] subjective complaints. The objective medical evidence does not support the alleged severity of symptoms or more restrictive functional limitations. (AR at 20, 21, 22.) It appears, therefore, that the ALJ based his adverse credibility determination solely on the lack of support in the objective medical record. However, although it is a relevant factor to consider, medical evidence alone is an insufficient basis to reject a claimant's subjective pain testimony. Rollins v. Massanari, 261 F.3d 853, 856-57 (9th Cir. 2001); Bunnell, 947 F.2d at 354 (noting that "an [ALJ] may not reject a claimant's subjective complaints based solely on a lack of objective medical evidence"); Smolen, 80 F.3d at 1285; Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995) ("Once the claimant produces medical evidence of an underlying impairment, the Commissioner may not discredit the claimant's testimony as to subjective symptoms merely because they are unsupported by objective evidence.").

Furthermore, the ALJ "must state specifically which symptom testimony is not credible and what facts in the record lead to that conclusion." Smolen, 80 F.3d at 1284 (emphasis added); Dodrill, 12 F.3d at 918 (9th Cir. 1993). Indeed, the ALJ's credibility findings "must be sufficiently specific to allow a reviewing court to conclude the ALJ rejected the claimant's testimony on permissible grounds and did not arbitrarily discredit the claimant's testimony." Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004). Here, although the ALJ characterized Plaintiff's statements regarding the impact of her impairments on her ability to work "not credible," the Court cannot glean any other specific reasons from the ALJ's opinion as to which portions of Plaintiff's testimony he did or did not credit and why.

As noted by Plaintiff and Defendant, the ALJ did discuss other reasons for his RFC, such as Plaintiff's failure to have additional surgery, her reported activities of daily living, and the fact that there appeared to be no worsening of Plaintiff's condition since the assessment by the consulting examiner, Dr. Sophon. However, in making these references, the ALJ made no specific finding that he was providing these issues as clear and convincing reasons for discounting Plaintiff's credibility. In fact, to the extent the ALJ attempted to use Plaintiff's daily activities to reject her credibility, his observations, which merely recounted her testimony, are way too vague. The Ninth Circuit has admonished that "[g]eneral findings are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints." Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998).

As there is no evidence to support a finding that Plaintiff was malingering (and the ALJ failed to expressly make such a finding), the ALJ was required to provide "clear and convincing" reasons to reject Plaintiff's testimony. The fact that the Court cannot determine whether the ALJ intended his discussion of Plaintiff's credibility to include any factor other than the objective medical record is proof that the ALJ was not "sufficiently specific to allow a reviewing court to conclude the ALJ rejected the claimant's testimony on permissible grounds and did not arbitrarily discredit the claimant's testimony." Moisa, 367 F.3d at 885 (citations and internal quotation marks omitted). Thus, the ALJ's credibility determination was error and this action must be remanded to allow the ALJ to properly consider Plaintiff's subjective complaints of impairment.


Pursuant to sentence four of 42 U.S.C. § 405(g), IT IS HEREBY ORDERED THAT Judgment be entered reversing the decision of the Commissioner of Social Security, and remanding this matter for further administrative proceedings consistent with this Memorandum Opinion.

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