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Cruz v. Colvin

United States District Court, C.D. California, Western Division

August 11, 2014

CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.


ANDREW J. WISTRICH, Magistrate Judge.

Plaintiff filed this action seeking reversal of the decision of defendant, the Acting Commissioner of the Social Security Administration (the "Commissioner"), denying plaintiff's applications 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 the disputed issue(s).

Administrative Proceedings

In May 2011, plaintiff filed his applications for benefits alleging that he had been disabled since February 26, 2010, the date of a final decision denying plaintiff's prior application for benefits. Plaintiff alleged disability due to brittle diabetes, depression, hypertension, cardiovascular disease, and high cholesterol.[1] [JS 2; Administrative Record ("AR") 14, 18, 93-98, 115, 124, 199]. In a 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 diabetes mellitus, neuropathy, mood disorder not otherwise specified with some anxiety features, and somatoform syndrome. [AR 16]. The ALJ further found that plaintiff retained the residual functional capacity ("RFC") to perform the exertional requirements of medium work, with nonexertional limitations restricting him to moderately complex tasks, no highly fast-paced work, and no safety-related operations. [AR 17]. The ALJ determined that plaintiff's RFC did not preclude him from performing his past relevant work as a sanitation worker. [AR 23]. Therefore, the ALJ found plaintiff not disabled at any time through the date of his decision. [AR 23-24].

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


Credibility finding

Plaintiff contends that the ALJ improperly assessed plaintiff's subjective symptom testimony. [JS 5-15, 19].

Plaintiff was represented by counsel during the administrative hearing and testified with the assistance of a Spanish language interpreter. [AR 14, 63-34]. Plaintiff testified that his subjective symptoms included "buzzing" in his head and feeling "very confused, " and that when he remains seated for 45 minutes to an hour, his legs start "hurting and burning." [AR 75]. Plaintiff said that he lived with his sister, who was a "housewife." [AR 75]. Asked to describe a normal day, plaintiff said that he got up, walked a bit, went to the park "to try to distract" himself, but then felt sad and returned home. [AR 76]. Plaintiff testified that he had "trouble sleeping because I'm constantly getting up to urinate. So during the day a lot of times I will fall asleep." [AR 76]. Plaintiff said that he had a driver's license but "never" drove at night and drove during the day only when necessary. [AR 76]. He said that he did not watch television much because things he saw on television made him worry about life. He said that "everything worries me. Insignificant things." He explained that he was "constantly worried about life without really knowing what I am worried about." [AR 76, 78]. Plaintiff said that when he was well, he "was a very happy person, but now I'm not sociable at all, " and that he felt "sadness, " "confusion in life, " and did not "see any fun in life anymore." [AR 77]. He had "considered committing suicide, " but daily therapy appointments at a hospital helped with his suicidal thoughts. [AR 77-78].

Asked why he could not work, plaintiff gave three reasons. First, he said that "if it's a job that requires me to concentrate in what I'm doing, I cannot concentrate." [AR 77]. Second, he said that "if I have to remain standing, I can't do that, because in no time at all, my legs start bothering me and my [right] arm... I feel like it's burning." [AR 77]. Third, plaintiff said that "If I'm taking any liquids, I have to go to the bathroom, like, every 45 minutes. And I can't wait. When I have to go, I have to go right now." [AR 77].

Regarding his leg pain, plaintiff testified that when he was on his feet, his heels started hurting, and the soles of his feet felt like he was standing on "hot concrete." [AR 78]. Plaintiff said that when he was in bed at night, he was unable to keep my feet under the blanket unless he had a fan blowing on them, because he felt like his feet were burning. [AR 78]. Plaintiff testified that he had trouble lifting heavy things and did not have the energy he used to have, and that if he had do so "consecutively, " he could not lift more than 10 pounds and not for too long. [AR 79].

In a written disability report, plaintiff stated that his daily activities included walking around, doing exercise, watching television, visiting friends, going to church, and visiting his sons. [JS 5; AR 227, 231]. Plaintiff said that he did not have problems with personal care, except that he needed to be reminded to take his medicine. [AR 228-229]. Plaintiff reported that he spent 20 to 30 minutes daily preparing salads, sandwiches, roasted chicken, and fruit for himself. He also said that he spent two hours twice a week sweeping, cleaning his room, doing laundry, and washing the restroom. [AR 229]. Plaintiff indicated that he went out every day unassisted, and that got around by walking, using public transportation, or riding a bike. He said that he did not drive because he sometimes felt confused and could not think clearly. [AR 230]. He also reported that he spent up to two hours shopping from once a week to once a month. [AR 230]. Plaintiff said that his social activities included talking with others and watching sports with others every two weeks, and that he went to church, to visit his sons or his friends, and to the mall. He said that he had no problems getting along with others. [AR 231-232]. Plaintiff reported that he could walk a mile, then needed to rest for 15 minutes before resuming walking. He said that he could concentrate for 10-15 minutes, generally could finish tasks he started, did not follow written or spoken instructions too well, did not handle stress well, handled changes in routine "okay, " and was more fearful than he used to be. [AR 233].

Once a disability claimant produces evidence of an underlying physical or mental impairment that is reasonably likely to be the source of the claimant's 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 she considers not credible, she 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 claimant's subjective testimony 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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