United States District Court, D. Arizona
A. TEILBORG, SENIOR UNITED STATES DISTRICT JUDGE.
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.
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).
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).
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).
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).
PLAINTIFF'S SYMPTOM TESTIMONY
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
Doc. 13 at 11-12).
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.
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
example, the ALJ noted that Plaintiff received relief from
his pain with medication. (Doc. 10-3 at 26). 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.
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 ...