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 defendant, the Commissioner of the Social Security Administration (the "Commissioner"), denying plaintiff's application for disability insurance benefits. The parties have filed a Joint Stipulation ("JS") setting forth their contentions.
The parties are familiar with the procedural facts. [See JS 2-4]. In a written hearing decision that constitutes the Commissioner's final decision in this case, an Administrative Law Judge (the "ALJ") found that plaintiff had severe degenerative disc disease of the lumbosacral spine with left lower extremity radiculopathy and did not have a severe mental impairment. [Administrative Record ("AR") 26]. The ALJ further found that plaintiff retained the residual functional capacity ("RFC") for a restricted range of light work, in that during an eight-hour work day, plaintiff could stand and walk for six hours and sit for six hours total, but could only sit for one hour at a time. [AR 27]. Relying on the testimony of a vocational expert, the ALJ determined that plaintiff's RFC precluded performance of his past work but did not preclude him from performing light, unskilled jobs available in significant numbers in the national economy. [AR 31]. Accordingly, the ALJ concluded that plaintiff was not disabled at any time through the date of her decision. [JS 3; AR 31-32].
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, Social 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. Social 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 Social Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999)). Discussion
Plaintiff contends that the ALJ failed properly to evaluate plaintiff's subjective symptom testimony. [See JS 4-24].*fn1
During the administrative hearing, plaintiff testified as follows. He
was 33 years old. He had only completed ninth or tenth grade, but he
could read and write. [AR 48]. He stopped working in 2006 because he
injured his back. [AR 49]. He was "in a lot of pain" in his low back
and both legs. The pain originated in his left leg but had spread to
both legs. His legs were "starting to give out, and it's going up to
my neck now, where I get severe neck spasms." [AR 51]. He experienced
pain all day and "especially at night." [AR 52]. He took Norco*fn2 as needed, up to six 10
milligram tablets daily, but no more because he did not want to damage
his kidney or liver. [AR 58]. Plaintiff also took diazepam*fn3
and paroxetine*fn4 as needed for anxiety. [AR
58]. Plaintiff's pain medication was effective for about four hours
and reduced his pain from nine or ten to about seven on a one-to-ten
scale. [AR 52-53, 58]. He was prescribed home exercises and physical
therapy, which provided some relief but did not eliminate the pain.
[AR 53]. Plaintiff was awaiting approval for other treatments, such as
water therapy. [AR 53-54]. He wore a back brace all the time. During a
typical day, he could dress himself in sweats or loose clothing, but
if the pain was bad, he needed assistance. [AR 54]. Plaintiff lived
with his fiance, who, he said, "helps me out a lot." [AR 54]. He tried
to wash dishes and sweep, but could not do it for long because he got
"real tired" and had pain. During the day, he watched television. He
tried "not to lay down so much, because it makes it worse, so I walk
around, sit down, lay down." [AR 54]. Plaintiff could visit friends or
family, but he did not like to socialize. [AR
Plaintiff said that he could stand for five to six minutes at a time for a total of 40 minutes in an eight hour workday, and sit for 10 minutes at a time before having to stand up or move around. [AR 55]. He experienced numbness and stinging in both legs. He had lost his balance, slipped, and fallen "a couple times already." [AR 56-57]. Plaintiff had been prescribed a cane by his doctor "a couple of years" before the hearing. [AR 56]. He "mainly used the back brace," and was wearing the brace during the hearing, but used the cane if he was going to walk "a long distance," something he usually did not do. [AR 56]. Plaintiff considered a "long distance" to be "[m]aybe a block, or two blocks, three blocks." [AR 57].
Plaintiff described his lumbar spine pain as "severe," "stabbing," and "like a bunch of knots, nerves[.]" [AR 57]. His neck felt "the same way, like a bunch of knots, just real bad," and it hurt to turn his head from side to side or up and down. [AR 57-58]. Plaintiff was seeing an orthopedist, a pain management specialist, a psychiatrist, and a therapist, who had been helping him "a little bit." [AR 59]. He experienced panic attacks as a result of severe back pain that radiated into his neck, "to where my neck stiffened up, and I couldn't even breathe, and I felt like I was going to have a heart attack." [AR 60]. Those symptoms had prompted him to go to the emergency room "a couple of times," most recently about a year before the hearing, resulting in his prescriptions for diazepam and paroxetine. [AR 59-60]. Plaintiff's doctor had suggested that one of his discs might be pinching a nerve, precipitating the pain and anxiety, and was trying to obtain authorization for an MRI. [AR 60]. Plaintiff's pain impaired his concentration and interrupted his sleep during the night, and he napped "[j]ust about every day" as much as he could, "an hour here, an hour there." [AR 61]. His doctors had recommended surgery, but plaintiff had told them he "would leave it as a last resort" because he was "so scare of being paralyzed," and doctors "can't confirm that it's going to fix me . . . ." [AR 61]. Plaintiff also had used a TENS unit and undergone electrical activity testing. [AR 62].
The ALJ summarized plaintiff's hearing testimony as follows:
At hearing, [plaintiff] testified in pertinent part that pain in his lower back spreads down to his legs and up to his neck which he claims is difficult to turn from side to side. He describes the pain in his lumbar spine as a stabbing sensation and further asserts that he has lost his balance and fallen due to leg numbness bilaterally. He stated that he receives treatment, including such medications as Norco, and Lorazepam, in connection with the workers' compensation litigation he is pursuing for his work-related back injury. Claimant indicated that his pain medications help for about two hours duration and, on a Wong-Baker scale of 1 to 10, he rates his pain as a 9 without medication and a 7 with it. He also said he wears a back brace all the time and sometimes uses a cane prescribed by his doctor. His assessment of his functional limitations is that within an 8 hour day, he can stand for about 5-6 minutes, stand for a total of 40 minutes, and sit for about 10 minutes before having to stand up and move around.
[AR 28]. The ALJ found that plaintiff's back impairment could reasonably be expected to cause his alleged symptoms, but that plaintiff's statements concerning their intensity, persistence, and limiting effects of his pain were not credible to the extent that they were inconsistent with the ALJ's RFC finding. [AR 28].
Once a disability claimant produces evidence of an underlying physical or mental impairment that is reasonably likely to be the source of her subjective symptoms, the adjudicator 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). Although the ALJ may then disregard the subjective testimony he considers not credible, he must provide specific, convincing reasons for doing so. Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001); see also Moisa, 367 F.3d at 885 (stating that in the absence of evidence of malingering, an ALJ may not dismiss the subjective testimony of claimant without providing "clear and convincing reasons"). 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 ...