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Gilbert Cisneros v. Michael J. Astrue

September 26, 2011

GILBERT CISNEROS,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION,
DEFENDANT.



The opinion of the court was delivered by: Patrick J. Walsh United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

Before the Court is Plaintiff's appeal from a decision by Defendant Social Security Administration ("the Agency"), denying his application for Disability Insurance benefits ("DIB") and Supplemental Security Income ("SSI"). Plaintiff claims that the Administrative Law Judge ("ALJ") erred in finding that he was not credible. For the reasons explained below, the Court concludes that the ALJ erred and remands the case to the Agency for further consideration.

II. SUMMARY OF PROCEEDINGS

On October 6, 2006, Plaintiff applied for DIB and SSI, alleging that he had been unable to work since January 1, 1990, due to arthritis, hepatitis C, and osteoporosis. (Administrative Record ("AR") 115-20, 129, 133.) His claim was denied initially and on reconsideration. He then requested and was granted a hearing before an ALJ, at which he appeared and testified. (AR 25-58.) On September 2, 2008, the ALJ issued a decision denying benefits. (AR 12-22.) Plaintiff appealed to the Appeals Council, which denied review. This appeal followed.

III. DISCUSSION

Plaintiff's only claim is that the ALJ erred in finding him not credible. For the following reasons, the Court agrees.*fn1

ALJs are tasked with judging the credibility of witnesses. In making credibility determinations, they employ ordinary credibility evaluation techniques. Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). Where a claimant has produced objective medical evidence of an impairment which could reasonably be expected to produce the symptoms alleged and there is no evidence of malingering, the ALJ can only reject the claimant's testimony for specific, clear, and convincing reasons that are supported by substantial evidence in the record. Id. at 1283-84; Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002).

Plaintiff testified that his right shoulder and left elbow "pop out" and are painful; that his left shoulder and neck are always sore; that his right hand gets numb; that his back "once in a while" goes out, forcing him to sit or lay down; that his left foot swells up when he walks because his big toe does not bend properly; and that he suffers on-and-off from migraines lasting for at least an hour at a time, during which he must lie down and apply cold packs to his head. (AR 36-40.) He also testified that his hepatitis makes him tire easily. (AR 42.)

The ALJ determined that Plaintiff was not credible because: (1) he was not using narcotic medication to treat his alleged severe pain and had not sought a stronger prescription; (2) he did not report any adverse side effects from the medication that he was using; (3) he failed to report for a consultative examination and failed to offer a satisfactory reason for doing so; (4) he has a history of incarceration; (5) his daily activities, other than overhead lifting, are not compromised by his impairments; (6) his demeanor at the hearing was inconsistent with his alleged limitations; (7) he is not being seen by a mental health professional; (8) he worked as a furniture mover for ten years during the period of alleged disability; (9) he failed to disclose to the Agency in the application process that he had worked as a furniture mover; and (10) he failed to report his earnings from his job as a furniture mover to the IRS. (AR 20.) The Court addresses each in order.

1. Failure to Use Stronger Pain Medication The ALJ found that Plaintiff was not using narcotic pain medication for his "allegedly severe pain" and had not sought a stronger prescription from his doctors. (AR 20.) In his view, this showed that Plaintiff's allegations of debilitating pain were not entirely credible. (AR 20.)

Though a claimant's failure to use strong pain medication to treat allegedly disabling pain is a legitimate reason for discounting a claimant's credibility, see, e.g., Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007) (approving ALJ's discounting of claimant's testimony that impairment was severe where claimant treated impairment with over-the-counter medication), the ALJ's finding here that Plaintiff was not using strong medication is not supported by the record. As the ALJ noted elsewhere in his decision, Plaintiff had been taking Vicodin to control his pain and had at times been prescribed other medications, including Butalbital, a barbiturate prescribed for pain and headaches, and Hydrocodone and Tramadol, narcotic analgesics used to treat moderate to severe pain. (AR 19.) Plaintiff testified that he continued to take Tramadol three times a day. (AR 44.) Thus, Plaintiff was taking what appears to be fairly strong medication for his symptoms and there is no evidence that stronger medication had been recommended but Plaintiff chose not to take it. Moreover, the ALJ did not address Plaintiff's testimony that he could not take stronger medication for his migraines because of liver and his stomach problems. (AR 40.) As such, the Court does not find this reason for questioning Plaintiff's credibility to be convincing.

2. Lack of Side Effects

The ALJ questioned Plaintiff's credibility based on the fact that his condition was controllable with medications and he had not reported adverse side effects from the medication. (AR 20.) Though these are valid reasons for questioning a claimant's testimony, see 20 C.F.R. ยง 416.929(c)(3)(iv); Social Security Ruling 96-7p (fact that a claimant's medical condition can be controlled with medication that does not cause side effects can be considered by the ALJ in determining whether a claimant is credible); Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (holding ALJ was permitted to consider the lack of evidence of side effects from prescription medication in discrediting claimant's testimony), they are not fully supported by the record. Plaintiff reported that his use of Naproxen caused drowsiness. (AR 153-54.) It is also not clear that ...


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