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Jimenez v. Commissioner of Social Security Administration

United States District Court, D. Arizona

May 3, 2019

Horacio Jimenez, Plaintiff,
v.
Commissioner of Social Security Administration, Defendant.

          ORDER

          JAMES A. TEILBORG, SENIOR UNITED STATES DISTRICT JUDGE

         Pending before the Court is Plaintiff's appeal of Defendant's denial of his request for social security disability benefits. Plaintiff makes two primary claims of error on appeal: 1) the ALJ erred in not giving greater weight to Plaintiff's treating physician, Dr. Elk; and 2) the ALJ did not give specific, clear, and convincing reasons supported by substantial evidence to not credit Plaintiff's subjective symptom testimony. (Doc. 13 at 1-3). The appeal is fully briefed. (Docs. 13, 14, and 15).

         I. Review of Decision of ALJ

          The decision of Administrative Law Judge (“ALJ”) 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).

         II. Plaintiff's Symptom Testimony

         Plaintiff argues the ALJ erred in rejecting Plaintiff's symptom testimony without providing specific, clear and convincing reasons supported by substantial evidence in the record as a whole. (Doc. 13 at 17).

         A. Legal Standard

         The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities. Reddick, 157 F.3d at 722.

When an ALJ “finds that a claimant's testimony relating to the intensity of his pain and other limitations is unreliable, the ALJ must make a credibility determination citing the reasons why the testimony is unpersuasive.” Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir.1999) (citing Bunnell v. Sullivan, 947 F.2d 341 (9th Cir.1991)). In making a credibility determination, the ALJ “must specifically identify what testimony is credible and what testimony undermines the claimant's complaints[.] In this regard, questions of credibility and resolutions of conflicts in the testimony are functions solely of the Secretary.” Id. (citations omitted).

Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006)

         In assessing the credibility of a claimant's testimony regarding subjective pain or the intensity of his symptoms, the ALJ must engage in a two-step analysis. Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012). First, as a threshold matter, “the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment ‘which could reasonably be expected to produce the pain or other symptoms alleged.'” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991)). Second, if the claimant meets the first test, then “the ALJ ‘may not discredit a claimant's testimony of pain and deny disability benefits solely because the degree of pain alleged by the claimant is not supported by objective medical evidence.'” Orteza v. Shalala, 50 F.3d 748, 749-50 (9th Cir. 1995) (quoting Bunnell, 947 F.2d at 346-47). Rather, “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 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 (9th Cir. 2002)).

         B. Analysis

         1. Supporting medical evidence

         Plaintiff claims the ALJ erred because the ALJ stated that “After careful consideration of the evidence, the undersigned finds that the claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms but his statements concerning the intensity, persistence, and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.” (Doc. 13 at 19). Plaintiff claims that by this statement the ALJ imposed a requirement that Plaintiff's symptom testimony be entirely consistent with the medical evidence and any such requirement is error. (Id.).

         First, the Court does not read the language of the ALJ's opinion as narrowly as Plaintiff. In other words, the Court reads “not entirely consistent” to mean the ALJ found that, as a matter of fact, Plaintiff's testimony and the records are consistent in parts and inconsistent in parts. The Court does not read it to mean the ALJ was holding that, as a matter of law, if Plaintiff's testimony and the records diverge at any point, Plaintiff's testimony is not to be credited. Thus, the Court rejects Plaintiff's interpretation of the opinion.

         Second, it is not error for the ALJ to discredit the severity of Plaintiff's symptom testimony when such testimony is inconsistent with the medical evidence. See, e.g., Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (“Although lack of medical evidence cannot form the sole basis for discounting pain testimony, it is a factor that the [ALJ] can consider in his credibility analysis.”); Carmickle v. Comm'r of Soc. Sec., 533 F.3d 1155, 1161 (9th Cir. 2008) (“Contradiction with the medical record is a sufficient basis for rejecting the claimant's subjective testimony.”).

         Third, the ALJ did not limit his findings to the medical evidence of record. She specifically included “other evidence in the record.” (Doc. 10-3 at 29).[1] For example, Plaintiff's daily activities were other evidence in the record. Specifically, the ALJ recounted that Plaintiff, “takes care of his personal needs without difficulty, prepares simple meals daily, does laundry twice a week, and shops in stores two to three times a week for 30 to 40 minutes. [citation omitted]. [Plaintiff] reported going outside almost every day, going out alone, and driving when traveling from his home. [Plaintiff] stated that he watches television every day but cannot sit as long as he used to and he sometimes goes to church.” (Doc. 10-3 at 29). These activities are additional substantial evidence of record on which the ALJ relied to discredit the severity of Plaintiff's symptom testimony. See Morgan v. Comm'r of Soc. ...


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