Jessica Ann Trujillo v. Michael J. Astrue, No. 5:2010cv00153 - Document 15 (C.D. Cal. 2010)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Ralph Zarefsky. (ib)
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Jessica Ann Trujillo v. Michael J. Astrue Doc. 15 O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JESSICA ANN TRUJILLO, 12 13 14 15 16 17 Plaintiff, vs. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) ) ) CASE NO. ED CV 10-00153 RZ MEMORANDUM OPINION AND ORDER This case primarily raises a question of Plaintiff’s credibility. The 18 Administrative Law Judge found that Plaintiff had impairments relating to low back 19 problems, as well as chronic pain that, he said, might have been due to fibromyalgia, as 20 well as stress fractures and spurs in her heels. [AR 13] He found that Plaintiff could sit 21 for eight hours [AR 15] — the medical expert had so testified [AR 56] — and therefore 22 could perform her past relevant work of being a receptionist. [AR 22] Plaintiff, however, 23 asserted that she could not sit for that long; in fact, she testified that her pain prevented her 24 from sitting for any appreciable length of time. [AR 61] If Plaintiff is believed, then the 25 Administrative Law Judge erred. 26 As has long been held, pain is an idiosyncratic phenomenon, and is incapable 27 of measurement with any precision. Pain alone does not entitle a person to receive 28 disability benefits, however. 42 U.S.C.§ 423(d)(5)(A). Rather, the pain must be tethered Dockets.Justia.com 1 to an impairment for which there is medical evidence. If it is, and if the impairment 2 reasonably can be expected to produce the pain, then the Administrative Law Judge can 3 determine not to believe a claimant only if there is affirmative evidence of malingering, or 4 if he gives specific and legitimate reasons for his disbelief. Bunnell v. Sullivan, 947 F.2d 5 341 (9th Cir. 1991) (en banc ); Smolen v. Chater, 80 F.3d 1273 (9th Cir. 1996). In 6 assessing the credibility of a claimant, the Administrative Law Judge may use ordinary 7 techniques for evaluating witnesses and their testimony, Fair v. Bowen, 885 F.2d 597, 604 8 (9th Cir. 1989), but he must specify the testimony that he disbelieves, and must explain 9 why. Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996); Dodrill v. Shalala, 12 F.3d 915, 10 918 (9th Cir.1993). 11 Although the issue is close in this case, the Court concludes that the 12 Administrative Law Judge did not comply with these rules. To begin with, even though 13 the Plaintiff’s testimony as to her ability differed specifically with that of the medical 14 expert, as indicated above, the Administrative Law Judge did not identify this specific 15 testimony as worthy of disbelief. Rather, he included only a general statement (largely 16 boilerplate, found in most administrative denials) that “the claimant’s allegations 17 concerning the intensity, persistence and limiting effects of her symptoms are less than 18 fully credible.” [AR 17] The particular allegations are not identified. 19 Moreover, assuming that the allegation at issue is the inability to sit for 20 prolonged periods of time, the Administrative Law Judge also did not give sufficient 21 reasons for disbelieving Plaintiff. He said that her allegations were inconsistent with 22 “objective medical evidence which indicates an attempt by the claimant to exaggerate the 23 severity of her symptoms” [id.], but, while he recounted the medical evidence in the record 24 [AR 18-21], he did not identify which medical evidence was “objective” and inconsistent 25 with Plaintiff’s testimony. Even the medical expert, who had opined (presumably an 26 opinion is not “objective” medical evidence) that Plaintiff could sit for eight hours, stated 27 that pain was subjective, and that there was little correlation between the symptom of pain 28 and what the MRI showed. [AR 57; “Pain is a subjective complaint, and this is an -2- 1 anatomical finding.”] The medical expert also stated that Plaintiff’s degenerative disc 2 disease did not cause physiological problems [id.]; he did not state, however, that the 3 objective evidence meant that Plaintiff had no pain, or had exaggerated her pain. In fact, 4 the medical expert also testified that Plaintiff’s complaints of pain would be consistent with 5 a diagnosis of fibromyalgia. [AR 58] Thus, the opinion that Plaintiff could sit for eight 6 hours did not take into account Plaintiff’s pain, which the expert nevertheless appeared to 7 acknowledge was real. 8 The vocational expert testified that, if the Plaintiff’s testimony were accepted, 9 and that she would be unable to complete a normal 8 hour work day because of pain, that 10 she could not perform any of her past work. [AR 74] He also testified that there would be 11 no unskilled jobs that she could perform. [AR 75] Thus, under these circumstances, it is 12 appropriate to credit Plaintiff’s statements as true. Varney v. Secretary of Health and 13 Human Services, 859 F.2d. 1396 (9th Cir. 1988); see Vasquez v. Astrue, 576 F.3d 586, 593 14 (9th Cir. 2009). Accordingly, Plaintiff is entitled to receive benefits. 15 16 17 In accordance with the foregoing, the decision of the Commissioner is reversed, and the matter is remanded for an award of benefits. IT IS SO ORDERED. 18 19 DATED: December 1, 2010 20 21 22 RALPH ZAREFSKY UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 -3-
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