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Sandra Kay Walker v. Carolyn W. Colvin

March 28, 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 defendant, the Commissioner of the Social Security Administration (the "Commissioner"),*fn1 denying plaintiff's application for 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]. On July 17, 2007, plaintiff filed an application for SSI benefits alleging that she had been disabled since April 29, 2006. [Administrative Record ("AR") 20, 68, 104]. In a December 10, 2009 written hearing decision that constitutes the Commissioner's final decision in this matter, an administrative law judge (the "ALJ") found that plaintiff had severe impairments consisting of tendonitis and depression. [AR 22, 26]. The ALJ further found that plaintiff retained the residual functional capacity ("RFC") to perform light work, except that she can occasionally climb, balance, stoop, kneel, crouch and crawl, and can only perform entry level work. [AR 23]. Relying on the testimony of a vocational expert, the ALJ determined that plaintiff's RFC precluded performance of her past work, but did not preclude her from performing light, unskilled jobs available in significant numbers in the national economy. [AR 25-26]. Accordingly, the ALJ concluded that plaintiff not was disabled at any time through the date of his decision. [AR 20, 26].

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

Credibility finding

Plaintiff contends that the ALJ failed properly to consider plaintiff's testimony about her subjective symptoms. [JS 15-20].

During the administrative hearing, plaintiff testified as follows. [See AR 23-24, 50-59]. She was 42 years old, left school in the ninth grade, and did not have a driver's license. [AR 50-51, 53]. She was advised not to drive because her medications for Parkinson's disease make her dizzy. [AR 51]. Although she had not been diagnosed with Parkinson's disease by a medical doctor, she was waiting for an appointment to see a neurologist. [AR 52]. She was paying out of pocket for her treatment because she did not have medical insurance, but she had applied to an insurance assistance program and was waiting to hear back. [AR 52-53]. The only income plaintiff and her husband received was his unemployment insurance. [AR 51, 57]. Plaintiff's treatment providers think she has Parkinson's disease because of the tremors in her hands, legs and feet. [AR 53]. Plaintiff stopped working because the Parkinson's disease and tendonitis made her susceptible to illness, and she progressively got worse. [AR 60]. She took Paroxetine,*fn2 for muscle spasms, Metformin*fn3 for diabetes, and Vicodin*fn4 and Flexeril*fn5 for pain. [AR 53, 55, 58]. Her pain medications lessened her pain a little, but not enough. [AR 58]. Plaintiff did not check her blood sugar, but got lab work done to monitor her diabetes. [AR 54]. The diabetes medication only helped her symptoms a little bit. [AR 61]. Her weight had fluctuated both up and down in the last few years. [AR 54]. She had hepatitis C that was dormant due to treatment, but she experienced some residual difficulty breathing as a result and was supposed to be on oxygen, but could not afford to pay for it. [AR 61]. Plaintiff experienced pain in her hands, feet, back, legs, and neck caused by Parkinson's disease and bone spurs in her neck that were turning into arthritis. [AR 55]. She was unable to get down on her hands and knees, experienced dizziness and numbness in her arms, and could walk or stand for 5 to 10 minutes before needing to sit down. [AR 62]. She also was depressed because she was unable to care for herself, and was being treated with medication, but was not attending counseling. [AR 55]. The medication to treat her depression had helped reduce her symptoms a little, but she continued to feel depressed because her medical condition was worsening. [AR 56]. She and her husband had to move in with her in-laws four months before the hearing because of their financial situation. [AR 57]. Plaintiff's daily routine consisted of waking up, eating breakfast, taking her medications, and then either lying down or sitting up and watching television for a little while before lying down. [AR 57]. Her mother-in-law then made her lunch, after which she sat down or went to sleep. [AR 58]. After dinner, plaintiff again watched a little television and then went back to bed. [AR 58]. She could not do any of her previous hobbies anymore, and only goes to church once in awhile. [AR 58-59]. She did not do any housework or wash the clothes, but she went shopping once a week with someone to assist her. [AR 59].

The ALJ summarized plaintiff's hearing testimony as follows:

At the hearing, the claimant testified that she does not drive as she was advised she should not due to medication and Parkinson's disease. She said this was diagnosed by John Batton, a physician's assistant about one year ago. She is still waiting to see a neurologist. The same PA diagnosed diabetes and she takes medication twice a day. She does not check her blood sugar. She has gained and lost weight in the last year. She takes Vicodin for pain in multiple areas. [¶]. She has 3 bone spurs in her neck. She started having depression about 8 months ago when she could not help herself. She takes medication but has not had any counseling. She lives with her in-laws for financial reasons. She gets up in the morning, has breakfast then watches TV for awhile, and lays back down again. Pain medication helps a little. Muscle relaxants do not help. Her mother-in-law makes meals. She goes to church occasionally, shops once a week, does no housework. She has had Hepatitis C and had interferon treatment. She is supposed to be on oxygen to help breathing but cannot afford it. She also has numbness in her arms. She could walk for 5 to 10 minutes then has to sit. She can stand for 5 to 10 minutes. She gets dizzy from the medication and has fallen twice when getting out of bed. [AR 23-24].

The ALJ summarized the objective medical evidence as follows. [AR 24-24]. The Commissioner's consultative physician, Kristol Siciarz, M.D., found bilateral tremor in the hands but concluded that it was not significant enough to interfere with fine manipulation. Plaintiff had grip strengths of 45 pounds on the right and 35 pounds on the left, with full range of motion of both wrists and hands. Dr. Siciarz opined that plaintiff was capable of medium work. [AR 24, 186-190]. The nonexamining state agency physicians subsequently reviewed plaintiff's file and concurred with Dr. Siciarz's conclusions. [AR 24, 223-224]. The nonexamining state agency psychiatric consultants indicated that plaintiff can perform unskilled, non-detailed, simple repetitive work tasks, had adequate pace and persistence to perform the above work tasks for a normal workday and work week, can relate in an appropriate, socially effective manner with co-workers, supervisors, and the general public and can adapt appropriately to a variety of work settings, situations, requirements, and changes. [AR 24, 191-204].

The ALJ found that plaintiff's tendonitis and depression could reasonably be expected to cause her alleged symptoms, but that plaintiff's statements concerning their intensity, persistence, and limiting effects of her pain were not credible to the extent that they were inconsistent with the ALJ's RFC finding. [AR 24].

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. ยงยง 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 ...

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