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Aguinaga v. Astrue

United States District Court, Ninth Circuit

January 2, 2014

MICHAEL J. ASTRUE, Commissioner of Social Security, Respondent.


RONALD E. BUSH, Magistrate Judge.

Pending before this court is Leticia Aguinaga's Petitioner for Review (Docket No. 1), seeking review of the Social Security Administration's final decision to deny her claim for Disability Insurance Benefits and Supplemental Security Income payments. The action is brought pursuant to 42 U.S.C. § 405(g). Having carefully reviewed the record and otherwise being fully advised, the Court enters the following Memorandum Decision and Order:


On or around January 11, 2005, Leticia Aguinaga ("Petitioner") protectively filed an application for Disability Insurance Benefits and Supplemental Security Income, alleging a disability onset date of January 1, 2000 (later amended to January 1, 2004). Petitioner's claim was initially denied on June 16, 2005 and, again, on reconsideration on October 17, 2005. On or around November 7, 2005, Petitioner timely filed a Request for Hearing before an Administrative Law Judge ("ALJ"). On March 22, 2007, ALJ John C. Arkoosh held a hearing in Twin Falls, Idaho, at which time Petitioner, represented by attorney Michael McCarthy, appeared and testified. An impartial vocational expert, James Grissom, and Petitioner's husband, Julio Aguinaga, Jr., also appeared and testified. Following the hearing, the ALJ requested that Petitioner submit to a consultative psychological exam, which she did on July 16, 2007.

On October 31, 2007, the ALJ issued a decision denying Petitioner's claims, finding that Petitioner was not disabled within the meaning of the Social Security Act. Petitioner timely requested review from the Appeals Council on December 3, 2007. Additional evidence was submitted to the Appeals Council on October 19, 2009. On February 23, 2010, the Appeals Council denied Petitioner's request for review, making the ALJ's decision the final decision of the Commissioner of Social Security.

Petitioner then filed an action in this Court on April 19, 2010. The parties stipulated to a remand to allow the Appeals Council to consider new evidence and, on November 22, 2010, the action was remanded. On January 18, 2011, the Appeals Council denied Petitioner's request for review. On January 31, 2011, Petitioner moved the Appeals Council to reconsider its decision to deny further review or, alternatively, to extend the time to commence a civil action. A second motion to extend the time to commence a civil action was filed with the Appeals Council on July 26, 2011. A third motion to extend the time to commence a civil action was filed with the Appeals Council on April 27, 2012. On July 27, 2012, the Appeals Council apparently denied Petitioner's motion for reconsideration, but extended the time to commence a civil action.

Having exhausted her administrative remedies, Petitioner timely files the instant action, arguing that (1) the ALJ failed to cite clear and convincing reasons for rejecting Petitioner's pain testimony; and (2) the ALJ erred in evaluating the opinion of Petitioner's treating nurse practitioner. See Pet.'s Brief, p. 3 (Docket No. 19). Petitioner therefore requests that this Court reverse the ALJ's decision or, alternatively, remand the case for further proceedings. See id. at p. 10; see also Pet. to Review, p. 4 (Docket No. 1).


To be upheld, the Commissioner's decision must be supported by substantial evidence and based on proper legal standards. 42 U.S.C. § 405(g); Matney ex. rel . Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992); Gonzalez v. Sullivan, 914 F.2d 1197, 1200 (9th Cir. 1990). Findings as to any question of fact, if supported by substantial evidence, are conclusive. 42 U.S.C. § 405(g). In other words, if there is substantial evidence to support the ALJ's factual decisions, they must be upheld, even when there is conflicting evidence. Hall v. Sec'y of Health, Educ. & Welfare, 602 F.2d 1372, 1374 (9th Cir. 1979).

"Substantial evidence" is defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Tylitzki v. Shalala, 999 F.2d 1411, 1413 (9th Cir. 1993); Flaten v. Sec'y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). The standard requires more than a scintilla but less than a preponderance ( see Sorenson v. Weinberger, 514 F.2d 1112, 1119 n. 10 (9th Cir. 1975); Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)), and "does not mean a large or considerable amount of evidence." Pierce v. Underwood, 487 U.S. 552, 565 (1988).

With respect to questions of fact, the role of the Court is to review the record as a whole to determine whether it contains evidence that would allow a reasonable mind to accept the conclusions of the ALJ. See Richardson, 402 U.S. at 401; see also Matney, 981 F.2d at 1019. The ALJ is responsible for determining credibility and resolving conflicts in medical testimony ( see Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984)), resolving ambiguities ( see Vincent ex. rel . Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984)), and drawing inferences logically flowing from the evidence ( see Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982)). Where the evidence is susceptible to more than one rational interpretation in a disability proceeding, the reviewing court may not substitute its judgment or interpretation of the record for that of the ALJ. Flaten, 44 F.3d at 1457; Key v. Heckler, 754 F.2d 1545, 1549 (9th Cir. 1985).

With respect to questions of law, the ALJ's decision must be based on proper legal standards and will be reversed for legal error. Matney, 981 F.2d at 1019. The ALJ's construction of the Social Security Act is entitled to deference if it has a reasonable basis in law. See id. However, reviewing federal courts "will not rubber-stamp an administrative decision that is inconsistent with the statutory mandate or that frustrates the congressional purpose underlying the statute." Smith v. Heckler, 820 F.2d 1093, 1094 (9th Cir. 1987).


A. Sequential Process

In evaluating the evidence presented at an administrative hearing, the ALJ must follow a sequential process in determining whether a person is disabled in general ( see 20 C.F.R. §§ 404.1520, 416.920) - or continues to be disabled ( see 20 C.F.R. §§ 404.1594, 416.994) - within the meaning of the Social Security Act.

The first step requires the ALJ to determine whether the claimant is engaged in substantial gainful activity ("SGA"). 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). SGA is defined as work activity that is both substantial and gainful. "Substantial work activity" is work activity that involves doing significant physical or mental activities. 20 C.F.R. §§ 404.1572(a), 416.972(a). "Gainful work activity" is work that is usually done for pay or profit, whether or not a profit is realized. 20 C.F.R. §§ 404.1572(b), 416.972(b). If the claimant has engaged in SGA, disability benefits are denied, regardless of how severe his physical/mental impairments are and regardless of his age, education, and work experience. 20 C.F.R. §§ 404.1520(b), 416.920(b). If the claimant is not engaged in SGA, the analysis proceeds to the second step. Here, the ALJ found that Petitioner has not engaged in substantial gainful activity since January 1, 2004, the amended alleged disability onset date. (AR 24).

The second step requires the ALJ to determine whether the claimant has a medically determinable impairment, or combination of impairments, that is severe and meets the duration requirement. 20 C.F.R. § 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment or combination of impairments is "severe" within the meaning of the Social Security Act if it significantly limits an individual's ability to perform basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c). An impairment or combination of impairments is "not severe" when medical and other evidence establish only a slight abnormality or a combination of slight abnormalities that would have no more than a minimal effect on an individual's ability to work. 20 C.F.R. §§ 404.1521, 416.921. If the claimant does not have a severe medically determinable impairment or combination of impairments, disability benefits are denied. 20 C.F.R. §§ 404.1520(c), 416.920(c). Here, the ALJ found that Petitioner had the following severe impairments: (1) degenerative disc disease of the lumbar spine; and (2) fibromyalgia. (AR 25).

The third step requires the ALJ to determine the medical severity of any impairments; that is, whether the claimant's impairments meet or equal a listed impairment under 20 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the answer is yes, the claimant is considered disabled under the Social Security Act and benefits are awarded. 20 C.F.R. §§ 404.1520(d), 416.920(d). If the claimant's impairments neither meet nor equal one of the listed impairments, the claimant's case cannot be resolved at step three and the evaluation proceeds to step four. Id. Here, the ALJ concluded that Petitioner's above-listed impairments, while severe, do not meet or medically equal, either singly or in combination, the criteria established for any of the qualifying impairments. (AR 25).

The fourth step of the evaluation process requires the ALJ to determine whether the claimant's residual functional capacity is sufficient for the claimant to perform past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). An individual's residual functional capacity is her ability to do physical and mental work activities on a sustained basis despite limitations from her impairments. 20 C.F.R. §§ 404.1545, 416.945. Likewise, an individual's past relevant work is work performed within the last 15 years or 15 years prior to the date that disability must be established; also, the work must have lasted long enough for the claimant to learn to do the job and be engaged in substantial gainful activity. 20 C.F.R. §§ 404.1560(b), 404.1565, 416.960(b), 416.965. Here, the ALJ determined that Petitioner has the residual functional capacity to perform work-related activities with the following restrictions: (1) lift and carry 20 pounds occasionally and 10 pounds frequently; (2) sit for a total of about six hours in an eight-hour workday; (3) stand/walk for a total of about six hours in an eight-hour workday; (4) frequently climb stairs and ramps, but never climb ladders, robes, or scaffolds; (5) frequently balance, kneel, and crawl; (6) occasionally stoop and crouch; and (7) avoid concentrated exposure to vibration. (AR 25-31).

In the fifth and final step, if it has been established that a claimant can no longer perform past relevant work because of her impairments, the burden shifts to the Commissioner to show that the claimant retains the ability to do alternate work and to demonstrate that such alternate work exists in significant numbers in the national economy. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v), 404.1520(f), 416.920(f); see also Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993). If the claimant is able to do other work, she is not disabled; if the claimant is not able to do other work and meets the duration requirement, she is disabled. Here, the ALJ found that Petitioner is capable of performing past relevant work as a fast food worker and as a cashier II because, according to the ALJ, such work does not require the performance of any work activities precluded by Petitioner's residual functional capacity. (AR 31).

B. Analysis

1. Petitioner's Credibility

Petitioner vigorously contests the ALJ's conclusion that her testimony surrounding the degree of her alleged pain is not entirely credible. See Pet.'s Brief, pp. 3-9 (Docket No. 19). As the trier of fact, however, the ALJ is in the best position to make credibility determinations and, for this reason, his determinations are entitled to great weight. See Anderson v. Sullivan, 914 F.2d 1121, 1124 (9th Cir. 1990). In evaluating a claimant's credibility, the ALJ may consider claimant's reputation, inconsistencies either in testimony or between testimony and conduct, daily activities, past work record, and testimony from physicians and third parties concerning the nature, severity, and effect of the alleged symptoms. See Light v. Social Security Admin., 119 F.3d 789, 791 (9th Cir. 1997). In short, "[c]redibility decisions are the province of the ALJ." Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989). Even so, however, to reject a claimant's testimony (absent evidence of malingering) requires that the ALJ make specific findings stating clear and convincing reasons for doing so. See Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001) (citing Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998)).

Petitioner contends that medical evidence exists in the record to diagnose medical conditions likely to cause the pain she experiences. See Pet.'s Brief, p. 6 (Docket No. 19) ("The record contains numerous citations to these signs, symptoms, and co-occurring conditions."). The ALJ's decision, however, does not disagree with such a notion. Indeed, the ALJ found Petitioner to be suffering from several severe impairments (degenerative disc disease of the lumbar spine and fibromyalgia) that not only "impose more than a minimal effect on the claimant's ability to perform basic work activities, " but also "could reasonably be expected to produce the alleged symptoms." (AR 25-30). It is what the ALJ goes on to state that Petitioner objects to - namely, that "[Petitioner's] statements concerning the intensity, persistence, and limiting effects of these symptoms are not entirely credible." (AR 30).

During the March 22, 2007 hearing, Petitioner extensively testified about the extent of her pain and associated physical restrictions, stating in relevant part:

Q: Okay. In the best of all possible worlds, in the best of all ideal worlds, is there a job out there that you feel you could do with your limitations and do it on a competitive basis eight hours a day, five days a week?
A: I feel at this time, no.
Q: Okay. And why is that?
A: Because I'm always in pain.
Q: Okay. And where do you hurt?
A: All through my back and my legs
Q: And is that an everyday hurt?
A: It is.
Q: All day?
A: Yes
Q: Okay. On a scale of 1 to 10, 1 is no pain or minor pain, 10's excruciating pain, the worst pain you can think of, pain so bad, in fact, you'd have to go to the hospital emergency room - you tell me 10, I want to see some emergency room records. On that scale of 1 to 10, I'm going to ask you about good days, bad days, average days. On an average day, how would you rate the pain in your low back, legs on that scale of 1 to 10 average day?
A: 9 to 10.
Q: That's an average day?....
A: That's the pain that I have every day
Q: Is there anything else you can tell me about your back, your legs that we haven't discussed?
A: It just eliminates me to do a lot of stuff at the house for my husband, for my kids, for myself. I don't live a normal life.
Q: Okay. Ma'am, can you take care of your personal needs? You can bathe yourself, feed yourself, clothe yourself, those sorts of things?
A: I have a hard time with my hygiene.
Q: Okay.
A: And to - well, to dress somewhat.
Q: Somebody has to help you with those things?
A: Well, I have a hard time like putting on my bra. I do it myself, but it hurts to stretch my arms back like that.
Q: Okay. Tell me about the housework that you do. Do you do the dishes?
A: My husband does the dishes. Off and on, I'll just load up the dishwasher sometimes, but not very often.
Q: Okay. Laundry?
A: My husband does the laundry.
Q: Cooking?
A: I'll do some cooking.
Q: Shopping?
A: I'll go shopping sometimes, but I always have somebody with me to load the groceries.... because I've tried, you know, grabbing the bags and stuff and I'm in a lot of pain the next day.
Q: Dusting, sweeping, vacuuming, mopping?
A: I've tried all that and it just ...

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