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Karen anderson v. Commissioner of the Social

February 5, 2013

KAREN ANDERSON, PLAINTIFF,
v.
COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Andrew J. Wistrich United States Magistrate Judge

MEMORANDUM OF DECISION

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. 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 are summarized in the Joint Stipulation. [See JS 2]. In a March 5, 2010 written hearing decision that constitutes the final decision of the Commissioner, an administrative law judge ("ALJ") found that plaintiff has severe impairments consisting of disorders of the cervical and lumbosacral spine, fibromyalgia,*fn1 and Sjogren's syndrome.*fn2 [Administrative Record ("AR") 18]. The ALJ further found that plaintiff retained the residual functional capacity ("RFC") to perform medium work from January 13, 2006 to January 2007, and that she retained the RFC to perform light work from the beginning of January 2007 through the date of the ALJ's decision. [AR 19]. The ALJ concluded that plaintiff was not disabled because her RFC did not preclude her from performing past relevant work as a computer typesetter or keyliner, customer complaint clerk, inventory clerk, receptionist, and cosmetics sales person. [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 her testimony about her subjective symptoms. [JS 3-6].

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 gave a history of dry eyes and mouth, and joint, limb, and back pain for several years preceding her alleged onset date in January 2006. [AR 176, 184]. At that time, she reported having been under "considerable stress." [AR 184]. She said that her symptoms improved as her stress decreased. She reported that she did very well for several years and was able to stop using eye drops, but that her symptoms recurred in early 2005. [AR 184]. She underwent lacrimal duct plugging in February 2007 for treatment of her dry eyes. [AR 218, 280-281]. The record also shows that plaintiff had soft tissue tender points in the neck, arms, elbows, shoulders, knees, back, and buttocks. [AR 218, 225, 227, 229, 231, 235, 237, 310]. She had mildly decreased motion in her neck. [AR 310, 313]. A September 2005 lumbar spine MRI resulted in "normal" findings. [AR 204]. In August 2007, an MRI revealed a two millimeter disc bulge at the C5-6 level with minimal canal stenosis, multi-level disc desiccation, and mild dextroscholiosis. [AR 319-321]. Nerve conduction studies of the lower extremities in April 2007 were "consistent with a mild right L5 and S1 radiculopathy." [AR 358].

Plaintiff characterizes her hearing testimony as follows:

[S]he stopped working because she was unable to physically or mentally handle her job. She reported that she was depressed with concentration, focus and memory problems. She testified that she does water aerobics twice a week, pilates once a week and goes for occasional short walks. She said she has visual limitation and can only be on a computer for a short time. After surgery for her eyes and extensive treatment, there was no improvement, but the doctors had nothing more to offer her to improve her vision. She testified that she could only sit or walk about 20 minutes. She is in constant pain and uses heat pads. She also reported several migraines a week. . . . [S]he suffered from a lot of fatigue and insomnia. There would be days that she spent the day in bed. She reported that she needs to lie down during the day. [JS 3 (citing AR 36-42, 47-48, 50-51)].

The ALJ concluded that plaintiff's testimony about her subjective symptoms was not fully credible. [AR 22-23]. Specifically, for the period from January 13, 2006 to the beginning of January 2007, the ALJ found that plaintiff retained the RFC to lift and carry fifty pounds occasionally and twenty-five pounds on a frequent basis without other limits. [AR 19]. From January 2007 through the date of her decision, the ALJ found that plaintiff retained the RFC to lift and carry twenty pounds occasionally and ten pounds frequently; sit for eight hours out of an eight hour day; stand or walk for six hours in an eight hour day, "except that she must be able to change position for 3 minutes every hour"; occasionally use the right lower extremity for pushing and pulling and operating foot controls; occasionally climb stairs, ladders and scaffolds; and occasionally bend, balance, stoop, kneel, crouch and crawl. [AR 19]. The ALJ further found that plaintiff could use both upper extremities for occasional work above shoulder level. [AR 19].

The ALJ provided several reasons to support her credibility finding. First, the ALJ concluded that plaintiff's subjective complaints about the severity of her sight and speech restrictions were inconsistent with other evidence in the record. [AR 21]. During the hearing, plaintiff said she "can't read with my eyes," and also said she could "read about two pages and then I have to stop . . ." [AR 40; see also AR 42 ("I can't read right now . . .")]. She also explained that when she wakes up she "can't speak at all," and that she can "barely talk" the rest of the time. [AR 42]. However, Dr. Aarchan Joshi conducted an eye examination on plaintiff and, although noting "[o]bvious dry eyes," concluded that she maintained "[e]xcellent central distance visual acuity in both eyes." [AR 200]. Plaintiff's treating physician, Dr. Ken J. Bulpitt, also noted at various times that plaintiff had no loss of vision or other vision problems. [AR 233; see also AR 223, 231]. Further, consultative examiner Dr. Conception Enriquez found that plaintiff had "grossly normal" visual fields. [AR 284]. Regarding plaintiff's speech, examining psychiatrist Dr. Ernest Bagner found that her speech was "intact and coherent with ...


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