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Otoniel Leanos v. Michael J. Astrue

November 17, 2011

OTONIEL LEANOS,
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 by Defendant Social Security Administration ("the Agency"), denying his application for Disability Insurance benefits ("DIB"). He claims that the Administrative Law Judge ("ALJ") erred when he concluded that Plaintiff was not credible and that he could sit or stand for more than an hour. For the reasons discussed below, the Agency's decision is affirmed.

II. SUMMARY OF PROCEEDINGS

In 2007, Plaintiff applied for DIB, alleging that he was disabled due to a hernia, pain throughout his body, and depression. (Administrative Record ("AR") 118-22, 146-47.) The Agency denied the application initially and on reconsideration. Plaintiff then requested and was granted a hearing before an ALJ. (AR 85-86, 88-89.) Plaintiff appeared with counsel and testified at the hearing on November 16, 2009. (AR 33-71.) The ALJ subsequently issued a decision denying benefits. (AR 13-25.) Plaintiff appealed to the Appeals Council, which denied review. (AR 1-6.) He then commenced this action.

III. ANALYSIS

A. The Credibility Finding

The essence of Plaintiff's testimony was that he was unable to work due to pain. (AR 41-45.) The ALJ found that this testimony was not credible. (AR 19-20.) Plaintiff argues that the ALJ erred in doing so. For the reasons explained below, the Court finds that the ALJ did not err.

ALJs 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, an ALJ 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. Id. at 1284.

The ALJ cited numerous reasons for questioning Plaintiff's credibility. (AR 20.) He noted that Plaintiff testified at the administrative hearing that he could not communicate in English but communicated with one of the examining doctors in English and told that doctor that he could read and write in English. (AR 20, 23, 38, 583, 586.) This is a legitimate reason to question a claimant's testimony, Perez v. Astrue, 247 Fed. App'x 931, 934 (9th Cir. 2007) (upholding ALJ's discounting of claimant's alleged inability to speak English based on observation of claimant at administrative hearing and record evidence supporting finding claimant could speak English), and is supported by the record.

The ALJ also questioned Plaintiff's testimony because he complained that he suffered from diarrhea six or seven times a month and, at the same time, alleged that his medications, which he took daily, caused constipation. (AR 20.) Again, this is a legitimate reason to question the testimony and is supported by the record. (AR 47, 53.)

The ALJ found that Plaintiff was not forthcoming with the doctors, representing to one that a knee injury was work related though the evidence contradicted that claim. (AR 20.) The record supports the ALJ's finding (AR 797) and is a legitimate basis for discounting Plaintiff's testimony. The ALJ also noted that Plaintiff failed to disclose to examining psychiatrist Donald Feldman that he was working. (AR 20.) This finding, too, is supported by the record (AR 739, 749) and is a legitimate reason for questioning Plaintiff's testimony.

The ALJ pointed out that Plaintiff:

[A]ppears to have a tendency to exaggerate the alleged severity of his symptoms, as documented by clinical evidence of Waddell's signs shown on clinical examinations, his refusal to take medications or otherwise comply with treatment instructions; progress notes making reference to minimal objective findings and/or an absence of ...


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