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Tammy A. Stanley v. Michael J. Astrue

March 15, 2011

TAMMY A. STANLEY, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

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

I. DISPUTED ISSUE

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.)

II. STANDARD OF REVIEW

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).

III. DISCUSSION

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 ...


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