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Robert Almaraz v. Michael J. Astrue

December 22, 2011


The opinion of the court was delivered by: Andrew J. Wistrich United States Magistrate Judge


Plaintiff filed this action seeking reversal of the decision of the defendant, the Commissioner of the Social Security Administration (the "Commissioner"), denying plaintiff's application for supplemental security income ("SSI") benefits. The parties have filed a Joint Stipulation ("JS") setting forth their contentions with respect to each disputed issue.

Administrative Proceedings

On December 12, 2007, plaintiff, aged 32, filed an application for SSI benefits alleging that he had been disabled since February 1, 2006. [JS 2; Administrative Record ("AR") 51, 92-98]. In a written hearing decision that constitutes the Commissioner's final decision in this matter, an administrative law judge ("ALJ") concluded that plaintiff was not disabled. The ALJ found that plaintiff had severe impairments consisting of status post gunshot wounds, residual pain, and hyperthyroidism (Graves disease), but retained the residual functional capacity ("RFC") to perform work available in significant numbers in the national economy. [AR 20-26].

Standard of Review

The Commissioner's denial of benefits should be disturbed only if it is not supported by substantial evidence or is based on legal error. Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). "Substantial evidence" means "more than a mere scintilla, but less than a preponderance." Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005). "It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)(internal quotation marks omitted). The court is required to review the record as a whole and to consider evidence detracting from the decision as well as evidence supporting the decision. Robbins v. Soc. Sec. Admin, 466 F.3d 880, 882 (9th Cir. 2006); Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas, 278 F.3d at 954 (citing Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir.1999)).

Credibility finding

Plaintiff contends that the ALJ failed properly to consider plaintiff's testimony about his subjective symptoms. [JS 4-13].

If the record contains objective evidence of an underlying physical or mental impairment that is reasonably likely to be the source of a claimant's subjective symptoms, the ALJ is required to consider all subjective testimony as to the severity of the symptoms. Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004); Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (en banc); see also 20 C.F.R. §§ 404.1529(a), 416.929(a) (explaining how pain and other symptoms are evaluated). Absent affirmative evidence of malingering, the ALJ must then provide specific, clear and convincing reasons for rejecting a claimant's subjective complaints. Vasquez v. Astrue, 547 F.3d 1101, 1105 (9th Cir. 2008); Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1160-1161 (9th Cir. 2008); Moisa, 367 F.3d at 885. "In reaching a credibility determination, an ALJ may weigh inconsistencies between the claimant's testimony and his or her conduct, daily activities, and work record, among other factors." Bray v. Comm'r of Social Sec. Admin., 554 F.3d 1219, 1221, 1227 (9th Cir. 2009); Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir.1997). The ALJ's credibility findings "must be sufficiently specific to allow a reviewing court to conclude the ALJ rejected the claimant's testimony on permissible grounds and did not arbitrarily discredit the claimant's testimony." Moisa, 367 F.3d at 885. If the ALJ's interpretation of the claimant's testimony is reasonable and is supported by substantial evidence, it is not the court's role to "second-guess" it. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001).

The record shows that in 1994, plaintiff suffered gunshot wounds to the stomach, lumbar spine, shoulder, and left knee. He underwent abdominal surgery with partial removal of the liver and intestine, as well as removal of the bullet from the lumbar spine. [JS 6; AR 33, 154)]. On May 5, 2007, plaintiff suffered another gunshot would, this time to the left ankle and foot area. [JS 6; AR 33, 154)]. Plaintiff also had diagnoses of hyperthyroidism and Graves disease*fn1 . [JS 6; AR 143, 148 186, 188].

Plaintiff characterizes his hearing testimony as follows:

[H]e is unable to work due to his pain in his back, pain in his left ankle area, and a weakness in the left ankle area. He stated, "my back is like really not helping me out a lot," and that, "my foot is like, you know, I don't have no, no support on it, you know, and I can't do a lot of things, reach, carry." [Plaintiff] testified that the bullet that caused his left foot's injury "went in the top and came out in the bottom of my foot." He stated that his back pain starts in his lower back and radiates throughout his body, especially in his back and hip. He also stated that the back pain causes fatigue. [Plaintiff] specified that he is only able to stand in one place without moving for about half an hour, and that when sitting he can only sit for about "Fifteen, 20 minutes at most." After doing either activity for too long his back starts "hurting a lot," said [plaintiff]. [JS 7 (citing AR 34-38)].

The ALJ concluded that plaintiff's testimony about his subjective symptoms was not fully credible. Specifically, the ALJ found that plaintiff retained the RFC to lift and carry twenty pounds occasionally and ten pounds frequently, stand and walk for four hours in an eight-hour day, sit for four hours in an eight-hour day, with an option to sit or stand as needed, and engage in occasional postural activities. [AR 23].

The ALJ provided clear and convincing reasons supporting his credibility finding. Contrary to plaintiff's argument, the ALJ was allowed to consider the lack of objective medical evidence corroborating the alleged severity of plaintiff's subjective symptoms. See Burch, 400 F.3d at 681 ("Although lack of medical evidence cannot form the sole basis for discounting pain testimony, it is a factor that the ALJ can consider in his credibility analysis."). The ALJ observed that plaintiff's earnings record showed that he worked in 1995 and several years thereafter prior to his alleged onset of disability, indicating that the residual effects of his 1994 gunshot injuries were not disabling. [AR 23-24 & n.1; see AR 99-104]. The ALJ further noted that the record contained little evidence of medical treatment, and that what few treatment reports there were concerned plaintiff's thyroid condition rather than his gunshot injuries. [AR 23-24]. Los Angeles County USC Medical Center Treatment patient health service summaries indicate that plaintiff was treated at a Los Angeles County facility on March 2 and March 3, 1994 and for abdominal and intestinal injuries, and again from May 5 to May 7, 2007 for a gunshot wound to his foot. [AR 180, 190]. Progress notes show that plaintiff was seen three times between October 2007 and December 2007 by a ...

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