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John Wittner v. Michael J. Astrue

December 12, 2012


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 disability insurance benefits and 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

The parties are familiar with the procedural facts, which included a prior order remanding this case to the Commissioner for further administrative proceedings to consider whether plaintiff was disabled from May 17, 2004, her alleged date of onset of disability, through February 14, 2007. [See JS 2; Administrative Record ("AR") 47-51, 576]. In an April 9, 2010 written hearing decision that constitutes the final decision of the Commissioner, an administrative law judge ("ALJ") found that plaintiff had severe impairments of disorder of the lumbar spine and chronic obstructive pulmonary disease ("COPD"). [AR 19]. The ALJ further found that plaintiff retained the residual functional capacity ("RFC") to perform light work but was "precluded from concentrated exposure to dust, fumes, chemicals, gases, etc., or sudden severe temperature changes." [AR 23]. The ALJ concluded that plaintiff was not disabled because his RFC did not preclude him from performing past relevant work as a blueprinting machine operator. [See JS 2-3; AR 16-27].

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, Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999)).

Credibility finding

Plaintiff contends that the ALJ improperly rejected his testimony about his subjective symptoms of back pain. [JS 4-25].

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, Soc. 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 August 2002, plaintiff had a lumbar spine x-ray that revealed osteopenia, levoscoliosis, and "degenerative changes at the L3-4, and L4-5 disc levels." [AR 19, 307]. Although this was initially interpreted as "[n]o acute process" [AR 307], an MRI conducted in November 2006 revealed degenerative and discogenic changes that indicated plaintiff's lower back condition had deteriorated. [AR 423-432]. In November 2007, plaintiff had another lumbar spine x-ray that revealed a "40% compression fracture of L5," and degenerative disc disease associated with scoliosis." [AR 540].

Plaintiff notes that during his prior hearing, he explained that his low back pain began in 1979 and it has worsened over the years. [JS 4]. Plaintiff characterizes his testimony at his most recent hearing regarding the relevant time period as follows:

[H]e had pain in his right back, right knee, left ankle, and both legs. He lies down about six hours during the day. He had difficulty sitting more than 20 minutes. He drove but only short distances. He does 'a little bit' of housework; he vacuums but 'very little' but does not mop. He shops 'for a few items.' He appeared at the hearing wearing a back brace, which he had worn for about three years. He also came to the hearing using a cane, which he had started using that year on his own. [JS 4 (citing AR 586-604)].

The ALJ concluded that plaintiff's testimony about his subjective symptoms was not fully credible. [AR 23-26]. Specifically, the ALJ found that plaintiff retained the RFC to lift and carry twenty pounds occasionally and ten pounds frequently, sit eight hours in an eight-hour workday, stand and walk for six hours in an eight-hour workday provided he is allowed to change positions for one to three minutes every hour, and occasionally climb stairs, bend, balance, stoop, kneel, crouch and crawl. [AR 23].

The ALJ provided four reasons to support her credibility finding. Plaintiff fails to discuss, or even acknowledge, the ALJ's "[f]irst and foremost" reason for finding him not credible: the inconsistency between his allegations and the observations of his wife of 26 years. [AR 23, 149-150]. Therefore, plaintiff has waived any challenge to this aspect of the ALJ's credibility finding. See Greger v. Barnhart, 464 F.3d 968, 973 (9th Cir. 2006) (holding that claimant waived issues because he did not raise those issues before the district court); Rojas v. Astrue, 2012 WL 3301025, at * 3 n.1 (E.D. Wash. Aug. 13, 2012) (holding that the plaintiff waived challenge to the ALJ's credibility evaluation by not contesting it before the district court); Green v. Atrue, ...

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