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Estrada v. Colvin

United States District Court, Ninth Circuit

January 23, 2014



PATRICK J. WALSH, Magistrate Judge.


Plaintiff appeals a decision by Defendant Social Security Administration ("the Agency"), denying her application for Supplemental Security Income ("SSI") and Disability Insurance benefits ("DIB"). She claims that the Administrative Law Judge ("AU") erred when she rejected her testimony. For the reasons explained below, the Court concludes that the ALJ did not err.


Plaintiff was born on November 30, 1962. (Administrative Record ("AR") 105.) In August 2008, she applied for SSI and DIE, alleging that she had been unable to work since August 2001, due to carpal tunnel syndrome, pain in her shoulders, elbows, and hands, hearing loss, obesity, pain disorder, and panic disorder. (AR 94-101, 105, 109, 127, 142, 150, 556.) The Agency denied her applications initially and again on reconsideration. (AR 55-59, 62-66.) Plaintiff then requested and was granted a hearing before an AU. (AR 67-68.) On May 18, 2010, she appeared without counsel at the hearing and testified. (AR 20-46.) On July 20, 2010, the ALJ issued a decision, denying benefits. (AR 11-19.) Plaintiff appealed to the Appeals Council, which denied review. (AR 1-3.) She then filed an action in this court, seeking to have the Agency's decision overturned. On the case to the Agency for further proceedings. On October 10, 2012, a different ALJ held a second hearing. (AR 571-605.) Thereafter, she issued a decision, again denying benefits. (AR 553-64.) This appeal followed.


Plaintiff argues that the ALJ erred when she determined that Plaintiff was not credible. For the following reasons, the Court disagrees.

Credibility determinations are the province of the AU. Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989). In making these determinations, ALJs may employ ordinary credibility evaluation techniques. Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). An ALJ is not required to believe every allegation of disabling pain or other non-exertional impairment. Orn v. Astrue, 495 F.3d 625, 635 (9th Cir. 2007) (citing Fair, 885 F.2d at 603)). Nevertheless, to discredit a claimant's testimony when a medical impairment has been established and there is no evidence that the claimant is malingering, the ALJ must provide specific, clear, and convincing reasons for doing so. Smolen, 80 F.3d at 1283-84. If the ALJ's credibility finding is supported by substantial evidence in the record, the Court may not engage in second-guessing. See thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002)

The sum and substance of Plaintiff's testimony was that her pain, which she quantified as a nine or ten without medication and a seven or eight with it, rendered her practically incapacitate, preventing her from sitting for more than ten to 15 minutes and from sleeping for more than four hours at a time among other things. (AR 586-88.) The ALJ discounted this testimony, noting: (1) Plaintiff was not complaint with her prescribed physical thereapy; (2) the medical and other evidence did not support such disabling symptoms; and (3) here daily actovotoes suggested greater capabilities. (AR 560-62.) These are legitimate reasons for questioning a claimant's testimony. See Fiar, 855 F.2d at 603 ("[A] claimant's failure to assert" a good reasons for failing to follow a prescribed course of treatment "can cast doubt on the sincerity of the claimant's pain testimony." Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991) (holding ALJ entitled to use ordinary techniques of credibility evaluation in assessing claimant's credibility); Osenbrock v. Apfel , 240 F.3d 1157, 1165-66 (9th Cir. 2001) (upholding ALJ's credibility determination in part because medical evaluations revealed little evidence of disabling abnormality); and Tommasetti v. Asture, 533 F.3d 1035, 1040 (9th Cir. 2008) (upholding ALJ's finding that claimant's claims of disabling pain were not credible based in part on his ability to fly to Venezuela and care for his ailing sister). And the record supports the ALJ's findings.

For instance, in 2012, Plaintiff was prescribed at least eight, once-weekly physical therapy sessions to help alleviate her pain. (AR 1046.) She attended six sessions, from February 7, 2012 to March or April 2012, and then stopped going until her return in June 2012. (AR 970-71, 1048-49.) It was reasonable for the ALJ to assume that Plaintiff's failure to attend her prescribed physical therapy sessions demonstrated that her pain was not as severe as she claimed that it had been.[1] Fair, 885 F.2d at 603.

Plaintiff disagrees. She argues that there is another interpretation of this evidence that is more favorable to her, pointing out, for example, that she told a physician's assistant in April 2012 that she stopped going to physical therapy because she was too irritable to move. (Joint Stip. at 9; AR 1036.) The Court agrees that there is more than one reasonable interpretation of this evidence. But the Court's role is not to search for alternative explanations and impose them on the parties, rather, the Court is charged with determining whether the ALJ's interpretation of the evidence was rational. Where, as here, it was, the ALJ's decision must be affirmed. See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (explaining court must uphold ALJ's decision even if the evidence in the record "is susceptible to more than one rational interpretation.")

Further, a fair reading of the record undermines Plaintiff's argument that her condition rendered her unable to attend physical therapy. For example, when she returned to physical therapy in June 2012, she told her physical therapist that she had been bitten by fire ants while gardening. (AR 970.) This certainly raises questions about her claim that she missed physical therapy because she was too irritable to move, an argument the ALJ implicitly rejected in discounting her testimony.

The ALJ also concluded that Plaintiff's gardening undermined her claim that she could only sit for ten to 15 minutes at a time. (AR 562, 851, 970.) Employing ordinary techniques of credibility evaluation, it was reasonable for the ALJ to conclude that if Plaintiff was capable of gardening she was probably capable of sitting for more than 15 minutes and that her testimony to the contrary was, at best, an exaggeration.

The ALJ also found that Plaintiff's other daily activities, like driving, helping to run her household, caring for her 14-, 13-, and 7-year-old children, and attending her daughter's soccer games also undermined her claims of disabling pain. (AR 561.) Plaintiff argues that social security law does not require that she be totally incapacitated in order to be disabled. (Joint Stip. at 10.) While the Court agrees with this general proposition, it is not applicable here. The ALJ did not rely on the fact that she could perform household tasks to conclude that she could work. Rather, the AU concluded that, because Plaintiff could perform a relatively wide range ...

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