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Blanca Zaldana v. Michael J. Astrue

August 13, 2012

BLANCA ZALDANA, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Robert N. Block United States Magistrate Judge

O

ORDER REVERSING DECISION OF COMMISSIONER AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS

Plaintiff filed a Complaint herein on September 26, 2011, seeking review of the Commissioner's denial of her applications for disability insurance and Supplemental Security Income benefits. In accordance with the Court's Case Management Order, the parties filed a Joint Stipulation on July 9, 2012. Thus, this matter now is ready for decision.*fn1

DISPUTED ISSUES

As reflected in the Joint Stipulation, the disputed issues that plaintiff is raising as the grounds for reversal and remand are as follows:

1. Whether the Administrative Law Judge ("ALJ") properly determined that plaintiff retained the residual functional capacity ("RFC") to perform medium work.

2. Whether the ALJ properly determined that plaintiff could return to her past work.

3. Whether the ALJ properly considered plaintiff's testimony. 4. Whether the ALJ properly considered third party statements.

DISCUSSION

As to Disputed Issue Nos. 3 and 4, as discussed hereafter, the Court concurs with plaintiff that the ALJ failed to make a proper adverse credibility determination with respect to plaintiff's subjective pain and symptom testimony and with respect to the lay witness testimony. As to Disputed Issue No. 1, the Court concurs with plaintiff that the ALJ erred in making his determination of plaintiff's RFC. The Court's inability to completely affirm the ALJ's adverse credibility determinations and his determination of plaintiff's RFC renders it unnecessary for the Court to address the second disputed issue raised by plaintiff (i.e., whether the ALJ erred in his vocational determination).

A. The ALJ failed to make a proper adverse credibility determination with respect to plaintiff's subjective pain and symptom testimony (Disputed Issue No. 3).

Disputed Issue No. 3 is directed to the ALJ's adverse credibility determination with respect to plaintiff's subjective pain and symptom testimony. (See Jt Stip at 28-39.)

An ALJ's assessment of pain severity and claimant credibility is entitled to "great weight." See Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1986). Under the "Cotton standard," where the claimant has produced objective medical evidence of an impairment which could reasonably be expected to produce some degree of pain and/or other symptoms, and the record is devoid of any affirmative evidence of malingering, the ALJ may reject the claimant's testimony regarding the severity of the claimant's pain and/or other symptoms only if the ALJ makes specific findings stating clear and convincing reasons for doing so. See Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986); see also Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993); Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir. 1991). Here, the ALJ found that plaintiff's statements concerning her impairments and their impact on her ability to work -- which the ALJ did not specifically describe -- were "not entirely credible" in light of the degree of medical treatment required, discrepancies between plaintiff's assertions and information contained in the documentary reports, the reports of the treating and examining practitioners, and the findings made on examination. (See AR 20.)

Preliminarily, the Court notes that the ALJ's adverse credibility determination suffers from two fundamental errors. First, although the ALJ seemingly acknowledged the "two-step process" for evaluating subjective pain and symptom testimony in his decision (see AR 21), nowhere in his decision did the ALJ make an explicit determination with respect to the first step of his credibility analysis (i.e., whether plaintiff had presented objective medical evidence of an underlying impairment which could reasonably be expected to produce some degree of pain and/or other symptoms). (See AR 20-21.) The Court finds that the ALJ's failure to make this threshold determination, especially in light of the ALJ's finding that plaintiff had several physical impairments, constituted a failure to apply the correct legal standard in assessing plaintiff's subjective pain and symptom testimony. See Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007) (to determine whether a claimant's subjective symptom testimony is credible, the ALJ must engage in a two-step analysis, the first of which requires determining "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'") (quoting Bunnell, 947 F.2d at 344); Smolen, 80 F.3d at 1281-82 (first stage of credibility analysis involves threshold determination of whether a claimant produced objective medical evidence ...


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