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Cobb v. Colvin

United States District Court, Central District of California

November 4, 2014

NORMAN MILLAR COBB, Plaintiff,
v.
CAROLYN COLVIN, Acting Commissioner of Social Security, Defendant.

ORDER REVERSING DECISION OF COMMISSIONER AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS

ROBERT N. BLOCK UNITED STATES MAGISTRATE JUDGE

Plaintiff filed a Complaint herein on February 4, 2014, seeking review of the Commissioner’s denial of his applications for Disability Insurance Benefits and Supplemental Security Income benefits. In accordance with the Court’s Case Management Order, the parties filed a Joint Stipulation on October 9, 2014. Thus, this matter now is ready for decision.[1]

DISPUTED ISSUES

As reflected in the Joint Stipulation, the disputed issues that plaintiff is raising as the grounds for reversal and remand are as follows:

1. Whether the Administrative Law Judge (“ALJ”) made a proper step two determination.
2. Whether the ALJ properly considered the opinion of plaintiff’s treating physician.
3. Whether the ALJ made a proper adverse credibility determination with respect to plaintiff’s subjective symptom testimony.
4. Whether the ALJ made a proper adverse credibility determination with respect to the lay witness statement.

DISCUSSION

For the reasons discussed hereafter, the Court concurs with the Commissioner that reversal is not warranted based on the ALJ’s alleged failure to make a proper adverse credibility determination with respect to plaintiff’s subjective symptom testimony, or based on the ALJ’s alleged failure to make a proper adverse credibility determination with respect to the lay witness statement, or based on the ALJ’s alleged failure to properly consider the treating physician’s opinion. However, the Court is unable to affirm the ALJ’s step two determination because the Court concurs with plaintiff that the ALJ failed to properly consider evidence of plaintiff’s meralgia paresthetica.

A. Reversal is not warranted based on the ALJ’s alleged failure to make a proper adverse credibility determination with respect to plaintiff’s subjective symptom testimony.

Disputed Issue Three is directed to the ALJ’s adverse credibility determination with respect to plaintiff’s subjective symptom testimony. (See Jt Stip at 20-28.)

An ALJ’s assessment of pain severity and claimant credibility is entitled to “great weight.” Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1986). Under the “Cotton test, ” where as here the claimant has produced objective medical evidence of an impairment which could reasonably be expected to produce some degree of pain and/or other symptoms, and the record is devoid of any affirmative evidence of malingering, the ALJ may reject the claimant’s testimony regarding the severity of the claimant’s pain and/or other symptoms only if the ALJ makes specific findings stating clear and convincing reasons for doing so. See Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986); see also Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993); Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir. 1991) (en banc).

Here, plaintiff testified that he last worked in December 2008, when he was “let go due to lack of production.” (See AR 61.) He also testified that he can no longer work because of “five areas that are wrong with me”: upper back pain, shoulder soreness, lower back pain, leg/calf pain, and a pinched nerve in his upper right thigh. (See AR 64-66.) He also testified that on account of these conditions, he had trouble walking and was limited to standing for 15-20 minutes at a time and sitting for 30-45 minutes at a time. (See AR at 64-66, 68.) ...


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