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Arthur A. Tabacco v. Michael J. Astrue

July 13, 2012


The opinion of the court was delivered by: Marc L. Goldman United States Magistrate Judge


Plaintiff Arthur A. Tabacco seeks judicial review of the Commissioner's denial of his application for disability insurance benefits ("DIB"). For the reasons discussed below, the Commissioner's decision is reversed, and this action is remanded for further proceedings.


Plaintiff was born on November 20, 1950, and was almost 60 years old at the time of the administrative hearing. (Administrative Record ("AR") at 50.) He completed one year of college and has work experience as a fire alarm systems designer and truck mechanic. (AR at 30, 45.) Plaintiff filed his application for benefits on October 21, 2008, alleging disability beginning May 15, 2008, due to neck, spine, and knee problems, rheumatoid arthritis in his hands and most joints, and HIV. (AR at 60.) The Social Security Administration denied Plaintiff's application initially on February 18, 2009. (AR at 52.)

A de novo hearing was held before Administrative Law Judge ("ALJ") Sharilyn Hopson on May 4, 2010. (AR at 27.) On June 10, 2010, the ALJ issued a decision denying Plaintiff's application. (AR at 16-20.) The ALJ determined that although Plaintiff suffers from degenerative disc disease ("DDD")*fn1 and HIV, he has the residual functional capacity ("RFC") to perform work at the light exertional level. (AR at 19-20.) The ALJ concluded that Plaintiff is capable of performing his past relevant work as a Computer-Aided Design ("CAD") drafter/designer as it is actually and generally performed, and that he was therefore not disabled. (AR at 20.) The Appeals Council denied review on September 15, 2011. (AR at 1.)

Plaintiff commenced this action for judicial review and the parties filed a Joint Stipulation ("Joint Stip.") of disputed facts and issues on May 31, 2012. Plaintiff contends that the ALJ erred in evaluating his credibility, and failed to give appropriate weight to the opinion of his two treating physicians and an examining orthopedist. (Joint Stip. at 11, 16.) Plaintiff seeks remand for payment of benefits or, in the alternative, remand for further administrative proceedings. (Joint Stip. at 20.) Defendant requests that the ALJ's decision be affirmed or, if the Court finds that the ALJ committed reversible error, that the Court remand for further administrative proceedings, given that this case was decided at step four and further testimony would be required. (Joint Stip. at 20.)


Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The Commissioner's or ALJ's decision must be upheld unless "the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole." Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1990); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means such evidence as a reasonable person might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). It is more than a scintilla, but less than a preponderance. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). To determine whether substantial evidence supports a finding, the reviewing court "must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). "If the evidence can support either affirming or reversing the ALJ's conclusion," the reviewing court "may not substitute its judgment for that of the ALJ." Robbins, 466 F.3d at 882.


A. The ALJ Improperly Evaluated Plaintiff's Credibility

Plaintiff contends that the ALJ failed to properly evaluate his credibility. At the hearing, Plaintiff described his severe back and neck pain, and arthritis in his hands, feet, knees, and elbows. (AR at 30, 41.) In addition, Plaintiff said he experiences dizziness, drowsiness, and fatigue. (AR at 38-40.) A typical day for Plaintiff consists of lying in bed on a heating pad and massage unit. He is unable to sit at the computer to work, and cannot lift anything that requires reaching overhead or bending down. (AR at 39-41.) He stated that despite his condition, he can lift a gallon of milk and take basic hygienic care of himself, but does not do any housework. (AR at 34-35.) These physical limitations described by Plaintiff were explicitly noted by his examining physician as correlating with objective findings in Plaintiff's medical record. (AR at 446.)

To determine whether a claimant's testimony about subjective pain or symptoms is credible, an ALJ must engage in a two-step analysis. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (citing 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 alleged pain or other symptoms. Lingenfelter, 504 F.3d at 1036. "[O]nce the claimant produces objective medical evidence of an underlying impairment, an adjudicator may not reject a claimant's subjective complaints based solely on a lack of objective medical evidence to fully corroborate the alleged severity of pain." Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (en banc). To the extent that an individual's claims of functional limitations and restrictions due to symptoms are reasonably consistent with the objective medical evidence and other evidence in the case, the claimant's allegations will be credited. SSR 96-7p, 1996 WL 374186 at *2 (explaining 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4)).*fn2

Unless there is affirmative evidence showing that the claimant is malingering, the ALJ must provide specific, clear and convincing reasons for discrediting a claimant's complaints. Robbins, 466 F.3d at 883. "General findings are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints." Reddick, 157 F.3d at 722 (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996)). The ALJ must consider a claimant's work record, observations of medical providers and third parties with knowledge of claimant's limitations, aggravating factors, functional restrictions caused by symptoms, effects of medication, and the claimant's daily activities. Smolen v. Chater, 80 F.3d 1273, 1283-84 & n.8 (9th Cir. 1996). The ALJ may also consider an unexplained failure to seek treatment or follow a prescribed course of treatment and employ other ordinary techniques of credibility evaluation. Id. (citations omitted).

Here, the ALJ concluded that Plaintiff's "medically determinable impairments could reasonably be expected to cause some of the alleged symptoms." (AR at 20.) However, the ALJ rejected Plaintiff's statements "concerning the intensity, persistence and limiting effects of these symptoms" to the extent they are ...

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