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Myra L. Wilmore v. Michael J. Astrue

January 9, 2013


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. [See JS 2-3]. In a May 18, 2011 written hearing decision that constitutes the final decision of the Commissioner, an administrative law judge ("ALJ") found that plaintiff has severe impairments consisting of degenerative joint disease of the left knee, hypertension, hyperlipidemia, and obesity. [Administrative Record ("AR") 25]. The ALJ further found that plaintiff retained the residual functional capacity ("RFC") to perform a reduced range of sedentary work. [AR 27]. Based on the testimony of a vocational expert, the ALJ concluded that plaintiff acquired work skills from past relevant work that are transferable to other jobs, including family case worker and community relations worker, that exist in significant numbers in the national economy. [AR 29-30]. Therefore, the ALJ found plaintiff not disabled at any time through the date of the decision. [AR 31].

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 her testimony about her subjective symptoms. [JS 4-9, 12-13].

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, 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 plaintiff reported a history of pain in her knees since January 2009. [AR 225].

At an August 5, 2009 consultative examination, plaintiff displayed a decreased range of motion and tenderness in both knees. [AR 227]. An x-ray taken that same day revealed mild to moderate degenerative disease of the left knee, particularly in the medial compartment. [AR 230]. Laboratory results showed that plaintiff had high cholesterol in May 2009 and February 2010. [AR 320, 325]. In March 2010, she was diagnosed with hyperlipidemia and hypertension. [AR 298-300]. In June 2010, plaintiff was admitted to the hospital for a headache. [AR 274]. She had high blood pressure and was again diagnosed with hypertension. [AR 275]. In October 2010, plaintiff weighed 196 pounds and her height was 63 inches. [AR 283]. Using a calculator provided on the Centers for Disease Control and Prevention website, plaintiff had a Body Mass Index of 34.7, which is considered obese.*fn1

Plaintiff characterizes her hearing testimony as follows:

[S]he stopped working because she could not stay up on the medication. [She] testified that she could not perform her old job [as a drug and alcohol counselor] because she would have to walk around every 15 minutes doing bed checks and she had no energy to help people. [She] testified that she suffers from pain in the knees and that during a typical day she spends about two hours on her feet. [She] testified that during a typical day she does not do much with her grandchildren and does not do grocery shopping. [She] testified that she takes the bus for transportation and can make meals. [JS 5 (citing AR 109-110, 112-113, 116-117)].

The ALJ concluded that plaintiff's testimony about her subjective symptoms was not fully credible. Specifically, the ALJ found that plaintiff retained the RFC to lift or carry ten pounds frequently and occasionally, sit for six hours in an eight-hour workday, and stand or walk for two hours in a eight-hour workday. [AR 27]. Plaintiff's RFC also included occasionally pushing or pulling with the lower extremities. [AR 27]. However, the ALJ restricted her from climbing ladders, ...

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