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Bolin v. Commissioner of Social Security Administration

United States District Court, D. Arizona

January 16, 2018

James Bolin, Plaintiff,
v.
Commissioner of Social Security Administration, Defendant.

          ORDER

          JAMES A. TEILBORG, SENIOR UNITED STATES DISTRICT JUDGE.

         Pending before the Court is Plaintiff appeal of the denial of his application for social security disability benefits. Plaintiff alleges three claims of error on appeal: 1) the Administrative Law Judge (ALJ) did not give adequate reasons to discredit Plaintiff's symptom testimony; 2) the ALJ did not give adequate reasons discredit certain doctors' testimony; and 3) the ALJ did not properly consider Plaintiff's sleep apnea.

         I. LEGAL STANDARD

         The ALJ's decision to deny benefits will be overturned “only if it is not supported by substantial evidence or is based on legal error.” Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989) (quotation omitted). “Substantial evidence” means more than a mere scintilla, but less than a preponderance. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998).

         “The inquiry here is whether the record, read as a whole, yields such evidence as would allow a reasonable mind to accept the conclusions reached by the ALJ.” Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (citation omitted). In determining whether there is substantial evidence to support a decision, the Court considers the record as a whole, weighing both the evidence that supports the ALJ's conclusions and the evidence that detracts from the ALJ's conclusions. Reddick, 157 F.3d at 720. “Where evidence is susceptible of more than one rational interpretation, it is the ALJ's conclusion which must be upheld; and in reaching his findings, the ALJ is entitled to draw inferences logically flowing from the evidence.” Gallant, 753 F.2d at 1453 (citations omitted); see Batson v. Comm'r of the Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). This is because “[t]he trier of fact and not the reviewing court must resolve conflicts in the evidence, and if the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ.” Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992); see also Young v. Sullivan, 911 F.2d 180, 184 (9th Cir. 1990).

         The ALJ is responsible for resolving conflicts in medical testimony, determining credibility, and resolving ambiguities. See Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). Thus, if on the whole record before the Court, substantial evidence supports the ALJ's decision, the Court must affirm it. See Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989); see also 42 U.S.C. § 405(g) (2012). On the other hand, the Court “may not affirm simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (quotation and citation omitted).

         Finally, the Court is not charged with reviewing the evidence and making its own judgment as to whether Plaintiff is or is not disabled. Rather, the Court's inquiry is constrained to the reasons asserted by the ALJ and the evidence relied on in support of those reasons. See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003).

         II. DISCUSSION

         A. PLAINTIFF'S SYMPTOM TESTIMONY

         “Unless an ALJ makes a finding of malingering based on affirmative evidence thereof, ” the ALJ may only find the claimant not credible by making specific findings supported by the record that provide clear and convincing reasons to explain her credibility evaluation. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006) (citing Smolen v. Chater, 80 F.3d 1273, 1283-84 (9th Cir. 1996)). In this case, both parties agree that the ALJ made no finding of malingering; and, therefore, was required to give clear and convincing reasons to reject the claimant's testimony about the severity of his symptoms. (Doc. 14 at 8[1]; Doc. 13 at 11-12).

         In rendering a credibility determination, the ALJ may consider several factors, including: “(1) ordinary techniques of credibility evaluation, such as the claimant's reputation for lying, prior inconsistent statements concerning the symptoms, and other testimony by the claimant that appears less than candid; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; and (3) the claimant's daily activities.” Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (quoting Smolen, 80 F.3d at 1284). If the ALJ relies on these factors and his reliance is supported by substantial evidence, the Court “may not engage in second-guessing.” Id. (quoting Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002)).

         In his briefing, Plaintiff does not dispute that the ALJ has a citation to medical evidence of record for each finding. Instead, Plaintiff argues that there is other evidence of record that the ALJ should have considered to reach a different finding.

         For example, the ALJ noted that Plaintiff received relief from his pain with medication. (Doc. 10-3 at 26[2]). Plaintiff argues that while this is true, Plaintiff's five year history of using strong pain medication should not be discounted by Plaintiff's improvement with pain medication. (Doc. 13 at 13). Conversely, Defendant notes that the ALJ's finding is consistent with Plaintiff's own testimony (“The pain never goes away other than, you know, when I take the medication to block it”). (Doc. 14 at 11) (citing Transcript at 51) Further, Defendant notes that under Ninth Circuit law, impairments that can be controlled with medication are not disabling. (Doc. 14 at 12) (citing Warre v. Comm'r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006)). Therefore, the Court finds improvement with medication is a clear and convincing reason to discredit Plaintiff's pain testimony.

         By way of further example, Plaintiff argues that while the ALJ correctly recounted the breadth and difficulty of Plaintiff's daily activities, the ALJ failed to include certain limitations on those activities. (Doc. 13 at 14). The ALJ noted that Plaintiff's doctor recommended he exercise 40 to 60 minutes per day (Doc. 10-3 at 26) and that Plaintiff hikes and walks for exercise (Id.). Further, the ALJ noted that Plaintiff takes care of all of his own personal grooming (including dressing, bathing, hair care, shaving, eating and using the restroom) with no reminders. (Doc. 10-3 at 22). The ALJ also noted that Plaintiff cleans, does the dishes, prepares simple means, drives a car, shops in stores for meals, clothes and household supplies, watches television, and takes his medication without reminders. (Doc. 10-3 at 22). Further, Plaintiff has no ...


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