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Nicole Leon v. Michael J. Astrue

November 7, 2011

NICOLE LEON,
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

Plaintiff appeals a decision of Defendant Social Security Administration ("the Agency"), denying her application for Disability Insurance benefits ("DIB") and Supplemental Security Income ("SSI"). She claims that the Administrative Law Judge ("ALJ") erred when he concluded that she could work as a cashier and when he rejected her's and her mother's testimony. For the reasons discussed below, the Agency's decision is affirmed.

II. SUMMARY OF PROCEEDINGS

In 2005, Plaintiff applied for DIB and SSI, alleging that she was disabled due to fibromyalgia, chronic fatigue, chronic pain, irritable bowel syndrome, and depression. (Administrative Record ("AR") 100-03, 108, 112, 116, 132-50.) The Agency denied the applications initially and on reconsideration. (AR 40-41, 59-63, 66-70.) She then requested and was granted a hearing before an ALJ. (AR 39, 93-94.) Plaintiff appeared with counsel and testified at the hearing on October 15, 2007. (AR 331-56.) The ALJ subsequently issued a decision denying benefits. (AR 48-58.) Plaintiff appealed to the Appeals Council, which granted review, vacated the ALJ's decision, and remanded the case to the ALJ for further proceedings. (AR 45-47.) On July 20, 2009, the ALJ held a second hearing. (AR 357-90.) Thereafter, he issued a second decision, again denying benefits. (AR 9-21.) Plaintiff appealed to the Appeals Council, which denied review. (AR 4-8.) She then commenced this action.

III. ANALYSIS

A. The Credibility Findings

i. Plaintiff

The gist of Plaintiff's testimony was that she was, in essence, physically incapacitated as a result of pain and had difficulty thinking clearly because of her mental/emotional impairments. (AR 132-59, 335-51.) As a result, in her view, she was incapable of working at any job. The ALJ found that her testimony was not credible. (AR 20.) Plaintiff argues that the ALJ erred in doing so. For the reasons explained below, the Court finds that the ALJ did not err.

ALJ's are tasked with judging the credibility of witnesses. 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, she can only reject the claimant's testimony for specific, clear, and convincing reasons.

Smolen v. Chater, 80 F.3d 1273, 1283-84 (9th Cir. 1996). In making a credibility determination, the ALJ may take into account ordinary credibility evaluation techniques as well as the claimant's daily activities. Id. at 1284.

The ALJ cited several reasons for questioning Plaintiff's credibility. (AR 20.) He spoke in general terms of how her testimony was inconsistent with the medical record. (AR 20.) He explained that, while Plaintiff alleged constant pain throughout her body and an inability to sit for more than an hour-and-a-half, she elected to fly for "hours upon hours" to Jamaica for vacation. (AR 20.)

This appears to be a specific, clear, and convincing reason for questioning Plaintiff's testimony. It seems reasonable for an ALJ to question the testimony of a claimant who claims that she was incapable of sitting for more than an hour-and-a-half yet chose to sit for hours on an airplane to go on vacation.

Plaintiff disagrees. She argues that the ALJ was exaggerating when he found that the plane ride lasted "hours and hours," since, as she testified, it lasted only five-and-a-half hours. (Joint Stip. at 15.) She points out further that she did not have to sit the whole time she was on the airplane and ...


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