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Nadine Pardue v. Michael J. Astrue

November 14, 2011

NADINE PARDUE, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: David T. Bristow United States Magistrate Judge

ORDER REVERSING DECISION OF COMMISSIONER AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS

Plaintiff filed a Complaint ("Complaint") on November 29, 2010, seeking review of the Commissioner's denial of her application for Supplemental Security Income. In accordance with the Magistrate Judge's Case Management Order, the parties filed a Joint Stipulation ("Jt. Stip.") on July 28, 2011. Thus, this matter now is ready for decision. *fn1

DISPUTED ISSUES

As reflected in the Joint Stipulation, the disputed issues here are as follows:

1. Whether the Administrative Law Judge ("ALJ") properly evaluated plaintiff's credibility regarding excess pain. (Jt. Stip. 4-24.)

2. Whether the ALJ properly considered plaintiff's residual functional capacity ("RFC"). (Jt. Stip. 24-27.)

3. Whether the ALJ properly considered vocational expert ("VE") testimony about work in the national economy. (Jt. Stip. 27-32.)

DISCUSSION

I. Reversal is warranted based on the ALJ's credibility evaluation.

During the administrative hearing, plaintiff testified that she stopped working in December 2005 due to a vision problem caused when her "eye exploded" after a thorn from a creosote bush entered her retina in 1994. (AR 24-25, 28.) Plaintiff testified that she lived with the pain from that incident for many years before having surgery to remove the eye in 2007 and that since the surgery, she experiences "bad" pain below her left eye "[j]ust about every day," and takes "bottles and bottles" of pain medication to treat it. (AR 28-29.) Plaintiff described the pain she experiences in her right hip and leg area due to having an extra bone in her spine as "like a hammer hitting you or something like throbbing pain." (AR 31.) As a result of her impairments, plaintiff testified that (i) she spends much of her day in bed, (ii) can only stand for 30 minutes at a time, (iii) has difficulty sitting for long periods of time because of the pain in her foot and leg and because her right leg and foot often fall asleep when she sits, (iv) suffers feelings of depression, and (v) is able to do hardly any chores around the house. (AR 30, 32, 34, 36.)

In the administrative decision, the ALJ found that while plaintiff's medically determinable impairments could reasonably be expected to cause her symptoms, her statements regarding the intensity, persistence and limiting effects of her symptoms "are not credible to the extent they are inconsistent with the [ALJ's RFC] assessment." (AR 14.) The ALJ cited the following reasons for discounting plaintiff's subjective pain testimony: (i) While plaintiff testified that she cannot stand for longer than 30 minutes and that when she sits, her leg and foot fall asleep, plaintiff also admitted that her symptoms are relieved when she elevates her leg; (ii) plaintiff's various activities (going outside two-to-three times a day, preparing frozen dinners, grocery shopping with her roommate, riding in a car, and playing basketball with her son) are inconsistent with plaintiff's allegations that she is unable to do things for herself, has to lie down and rest all day and passes out if she bends, lifts, or walks, is not able to cook or drive, and cannot watch television, read, write or use a computer; (iii) plaintiff's testimony that she has only an 8th grade education is inconsistent with her assertion in her Disability Report that she completed the 11th grade; and (iv) a Social Security Officer reported that plaintiff had no observable problems with reading, concentrating, answering, sitting, standing, walking or using her hands. (AR 13-14.)

Plaintiff asserts that this credibility evaluation was not supported by substantial evidence because "none of [p]laintiff's statements about her daily activities were inconsistent with her testimony about her impaired abilities to sit, stand, and walk." (Jt. Stip. 7.) This argument is supported by the record and warrants reversal of the Commissioner's decision.

"Generally, 'questions of credibility and resolution of conflicts in the testimony are functions solely' for the ALJ." Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007) (quoting Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982)). To determine whether a claimant's subjective symptom testimony is credible, the ALJ must engage in a two-step analysis. Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). "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 pain or other symptoms alleged.'" Id. at 1036 (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). "Second, if the claimant meets this first test, and there is no evidence of malingering, 'the ALJ can reject the claimant's testimony about the severity of [his] symptoms only by offering specific, clear and convincing reasons for doing so.'" Id. (quoting Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996)). An ALJ must "specifically identify" the testimony found not credible and explain "what evidence undermines" the testimony. Parra, 481 F.3d at 750 (citing Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)). Because plaintiff's record includes objective medical evidence establishing that he suffers from impairments that could reasonably produce the symptoms of which he complains, and there was no affirmative evidence of malingering, the "clear and convincing" standard applies here. See Carmickle v. Comm'r. Soc. Sec. Admin., 533 F.3d 1155, 1160 (9th Cir. 2008).

Under this standard, the reasons provided by the ALJ to discount plaintiff's credibility were not clear and convincing. The ALJ improperly discounted plaintiff's subjective pain testimony as being inconsistent with her daily activities. See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002) (inconsistency between the claimant's testimony and the claimant's conduct supported rejection of the claimant's credibility); Verduzco v. Apfel,188 F.3d 1087, 1090 (9th Cir. 1999) (inconsistencies between claimant's testimony and actions cited as a clear and convincing reason for rejecting the claimant's testimony). The mere fact that plaintiff carries on basic, everyday activities while at home does not, and should not, detract from her credibility, especially when there is no indication these activities take up a substantial part of plaintiff's day. Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) ("One does not need to be 'utterly incapacitated' in order to be disabled.") Further, there is no indication that any of plaintiff's activities are "transferable to the work setting with regard to the impact of pain." Vertigan, 260 F.3d at 1050. The ALJ's assertion that plaintiff goes outside two-to-three times per day is of little significance, since plaintiff stated that she only goes out to her yard, and that she can no longer walk any further because she previously "passed out a couple of times in the desert" while out on walks. (AR 14, 36, 154.) Further, the ALJ's assertion that plaintiff prepares frozen dinners has little bearing since, as plaintiff noted in the Joint Stipulation, preparing a frozen dinner in the microwave is hardly akin to actual cooking, and thus it says little about plaintiff's functional capabilities. (AR 14.) (Jt. Stip. 13.) The ALJ's assertion that plaintiff played basketball with her son is belied by plaintiff's implication that this was a one-time occurrence, roughly ...


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