Diaz v. Astrue, No. 2:2007cv01871 - Document 24 (D. Ariz. 2009)
Court Description: ORDER denying Plaintiff's 13 Motion for Summary Judgment; granting Defendant's 22 Cross-Motion for Summary Judgment; directing the Clerk to enter judgment accordingly. Signed by Judge Mary H Murguia on 3/26/09.(REW, )
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Diaz v. Astrue Doc. 24 1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 ROSALBA DIAZ, Plaintiff, 10 11 v. 12 13 MICHAEL J. ASTRUE, Commissioner of Social Security, 14 Defendant. 15 ) ) ) ) ) ) ) ) ) ) ) ) ) No. CV 07-1871-PHX-MHM ORDER 16 Plaintiff Rosalba Diaz seeks judicial review of the Administrative Law Judge’s 17 18 decision to deny her claim for disability insurance benefits pursuant § 205(g) of the Social 19 Security Act, 42 U.S.C. § 405(g). Currently pending before the Court are Plaintiff’s 20 Motion for Summary Judgment (Dkt. #13) and Defendant Michael J. Astrue’s Cross- 21 Motion for Summary Judgment and Opposition to Plaintiff’s Motion for Summary 22 Judgment (Dkt. #22). Plaintiff did not file a Response to Defendant’s Cross-Motion for 23 Summary Judgment. 24 I. 25 PROCEDURAL HISTORY In May 2003, Plaintiff filed an application for a period of disability insurance 26 benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq. 27 (Administrative Record (“AR”) 61-63). Plaintiff’s application was denied initially and on 28 reconsideration. (AR 43-46, 48-50). Plaintiff then requested a hearing before an Dockets.Justia.com 1 Administrative Law Judge (“ALJ”) in November 2003; the request was granted and a 2 hearing was held before ALJ Laura Havens on March 29, 2005. (AR 401-421). On May 3 18, 2005, the ALJ denied Plaintiff's application for disability benefits, finding, among 4 other things, that Plaintiff did not suffer a disability as defined in the Social Security Act 5 from the alleged onset date through the date of the decision. (AR 364-372). The Appeals 6 Council granted Plaintiff’s request for review of the ALJ’s decision because “[t]he 7 hearing recording [could not] be located; there, the record is incomplete” (AR 378), and a 8 second hearing was held before ALJ Michael Tucevich on April 5, 2007. (AR 383-399). 9 On April 27, 2007, the ALJ found, among other things, that Plaintiff “had not been under 10 a disability, as defined in the Social Security Act” from the alleged onset date of disability 11 through the date of the decision. (AR 25). The Appeals Council denied Plaintiff’s 12 request for review of the ALJ’s decision. On October 1, 2007, Plaintiff initiated the 13 instant action for judicial review of the ALJ’s decision pursuant to 42 U.S.C. § 405(g). 14 II. BACKGROUND 15 A. 16 Plaintiff is a 44-year old female who sustained injury to her left knee after she Plaintiff's Medical History 17 tripped over a rock on July 17, 2001. (AR 163). On September 16, 2001, Plaintiff 18 underwent magnetic resonance imaging (“MRI”), which showed meniscal tears and a 19 chronically torn anterior cruciate ligament (“ACL”) with thin joint effusion. (AR 133- 20 134). As a result, Plaintiff underwent three surgeries on her knee: September 26, 2001; 21 January 2, 2002, and March 20, 2002. (AR 184-86, 190-92, 193-95). Plaintiff’s surgeon, 22 Gerald Yacobucci, M.D., Diplomate, American Board of Orthopedic Surgery, released 23 Plaintiff to desk work shortly after the first and second surgeries. (AR 328, 337). After 24 the third surgery, Plaintiff was released to desk work after two months of recovery. (AR 25 312). Following her surgeries, although she continued to experience pain in her left knee, 26 Plaintiff initially appeared to be recovering as expected; but progress notes indicate that 27 around September 2002, Plaintiff was no longer progressing as expected due to increased 28 pain. (AR 203-05, 213-14, 221-24). Plaintiff began attending orthopedic rehabilitation -2- 1 on November 18, 2002, and Dr. Yacobucci noted on December 10, 2002, that Plaintiff’s 2 knee was improving and she was experiencing less pain. (AR 281, 294). After making 3 “good improvement,” Plaintiff was discharged from the rehabilitation program on April 1, 4 2003. (AR 263, 271-72). 5 B. 6 On April 5, 2007, a hearing on Plaintiff’s application for disability benefits was Hearing Testimony 7 held before ALJ Michael Tucevich. (AR 383-400). Plaintiff gave testimony at that 8 hearing. (Id.). David Janus, a vocational expert, also appeared at the hearing, but his 9 testimony was not required. (AR 18). Plaintiff, age 42 at the time of the hearing, testified 10 that she returned to work (after her first surgery, “but they had [her] sitting down.” (AR 11 388). However, Plaintiff testified that she was sent home the next day because her 12 manager told her that he did not have a desk job available for her. (AR 388-89). Plaintiff 13 also testified that her post-op pain level was “[a]round six, eight, nine.” (AR 656-57). 14 However, after some apparent confusion over the appropriate nature of the pain levels in 15 a 1-10 pain scale was cleared up (AR 391-95), Plaintiff testified that on an average day 16 between July 2001 and April 2003 her pain level ranged from around a four to an eight. 17 (AR 396). In addition, Plaintiff testified that she returned to work in April 2003, some 18 time after her third surgery, and that her pain level was “about a six”; prior to that time 19 she testified that her pain level had been at an eight. (AR 397-98). Further, although 20 Plaintiff stated that she “worked with a lot of difficulty,” she acknowledged that she was 21 able to work “until just recently when [she] had another surgery to [her] left knee.” (AR 22 399). 23 C. 24 On April 27, 2007, the ALJ denied Plaintiff’s claim for disability insurance 25 benefits, following the requisite five-step sequential evaluation for determining whether 26 an applicant is disabled under the Social Security Act. See 20 CFR §§ 404.1520 and 27 416.920. (AR 18-25). At step one, the ALJ found that the Plaintiff had not engaged in 28 substantial gainful activity since July 17, 2001, the alleged onset date. (AR 20). At step ALJ’s Conclusion -3- 1 two, the ALJ stated that the objective medical evidence of the record indicated that 2 Plaintiff had “the following severe impairment: status post left knee injury.” (Id.). 3 However, at step three, the ALJ concluded that this impairment did not meet or equal the 4 criteria of any listed impairment pursuant to 20 CFR, Part 404, Subpart P, Appendix 1. 5 (Id). 6 At step four, “[a]fter careful consideration of the record,” the ALJ found “that 7 during the closed period of disability alleged, and thereafter, the claimant had the residual 8 functional capacity to perform sedentary work activity, with lifting and carrying up to ten 9 pounds, sitting for six hours a day and standing and walking to two hours a day, and with 10 occasional climbing, balancing, stooping, kneeling, crouching and crawling.” (AR 21- 11 24). 12 In making this determination, the ALJ noted that although Plaintiff “testified to a 13 pain level of between 6 and 9 out of 10 . . . throughout the alleged closed period of 14 disability” at the March 29, 2005 hearing, she testified at the April 5, 2007 hearing that 15 she experienced “an average pain level of 4-5 while she is on her pain medications, with 16 the highest level of pain at 7 or 8, again, with pain medication.” (AR 22). The ALJ also 17 noted that Plaintiff stated that her “pain improved following the third surgery,” and that 18 Plaintiff “went back to work but could not get employment because there were no desk 19 jobs available.” (Id.). 20 The ALJ rejecting Plaintiff’s credibility, finding that “although [Plaintiff’s] 21 medically determinable impairment could reasonably be expected to produce the alleged 22 symptoms, . . . [Plaintiff’s] statements concerning the intensity, persistence and limiting 23 effect of th[o]se symptoms are not entirely credible.” (AR 22). In particular, the ALJ 24 stated that while Plaintiff’s “good work history demonstrates motivation and bolsters her 25 credibility, her testimony that “she could not stand or walk for more than ten minutes at a 26 time, lift objects heavier than 25 pounds, kneel or crouch[,] . . . . is less than fully credible 27 because treatment records show a steady improvement in her left knee condition 28 following each surgery, her treating orthopedic surgeon placed her at sedentary work, and -4- 1 her self-reported daily activities, including cooking, doing the dishes, and helping the 2 children in the household get ready for school in the morning, are inconsistent with a 3 disabling impairment.” (Id.). 4 In addition, the ALJ noted that “[a]fter initially injuring her left knee, [Plaintiff] 5 received conservative treatment of her left knee and continued to work under modified 6 work status for a short period of time.” (Id.). Then, after her third surgery in March 7 2002, Plaintiff “was advised by her physician to stay off of her feet and use a cane for 8 walking.” (Id.). Plaintiff was also released “to desk work shortly after the first and 9 second surgeries,” and “[f]ollowing the third surgery, Dr. Yacobucci again released 10 [Plaintiff] to desk work.” (Id.). Further, the ALJ noted that although “[p]hysical therapy 11 progress notes show that [Plaintiff] had some difficulties with the left knee through 12 November 2002, . . . a new course of physical therapy was begun, and by March 2003, 13 [Plaintiff] was discharged from therapy, having made ‘good progress’ toward goals.” 14 (AR 23). 15 The ALJ gave controlling weight to the opinion of Dr. Yacobucci, Plaintiff’s 16 treating physician, who “felt that [Plaintiff] had brief, temporary periods of disability 17 following her knee surgeries in September 2001 and January and March 2002, but that 18 she was able to return to desk work / sedentary work, after each of the surgeries.” (Id.). 19 As such, the ALJ concluded that Plaintiff “did not have a period of disability over a 12- 20 month period from July 17, 2001 through April 1, 2003, despite the fact that she was 21 given permanent functional restrictions on April 1, 2003.” (Id.). 22 At step five, the ALJ found that Plaintiff “is unable to perform any past relevant 23 work.” (AR 24). The ALJ relied on the vocational expert’s testimony at the prior hearing 24 that “based on a residual functional capacity for sedentary work activity, the claimant 25 would be unable to perform any of her past relevant work, which was comprised of 26 unskilled, manual labor jobs.” (Id.). However, the ALJ found that “there are jobs that 27 exist in significant numbers in the national economy that [Plaintiff] can perform,” because 28 Plaintiff “has been capable of making a successful adjustment to other work that exists in -5- 1 significant numbers in the national economy.” (AR 24-25). Specifically, the ALJ relied 2 on the vocational expert’s testimony that “an individual with [Plaintiff’s] age, education, 3 work experience, and residual functional capacity, . . . would be able to perform the 4 requirements of representative occupations such as assembler of personal computer 5 boards, of which 500 jobs exist in the regional economy and 80,000 jobs exist in the 6 national economy.” (AR 24). Thus, based on the ALJ’s findings, the ALJ concluded that 7 Plaintiff “has not been under a disability, as defined in the Social Security Act, from July 8 17, 2001 through the date of this decision (20 CFR 404.1520(g)).” (AR 25). 9 III. STANDARD OF REVIEW 10 To qualify for disability insurance benefits, an applicant must establish that she is 11 unable to engage in substantial gainful activity due to a medically determinable physical 12 or mental impairment that has lasted or can be expected to last for a continuous period of 13 not less than 12 months. See 42 U.S.C. § 1382c (a)(3)(A). The applicant must also show 14 that she has a physical or mental impairment of such severity that the applicant is not only 15 unable to do her previous work, but cannot, considering her age, education, and work 16 experience, engage in any other kind of substantial gainful work which exists in the 17 national economy. Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989). To 18 determine whether an applicant is eligible for disability insurance benefits, the ALJ must 19 conduct the following five-step sequential analysis: 20 (1) 21 (2) 22 (3) 23 24 (4) 25 (5) 26 27 determine whether the applicant is currently employed in substantial gainful activity; determine whether the applicant has a medically severe impairment or combination of impairments; determine whether the applicant’s impairment equals one of a number of listed impairments that the Commissioner acknowledges as so severe as to preclude the applicant from engaging in substantial gainful activity; if the applicant’s impairment does not equal one of the listed impairments, determine whether the applicant is capable of performing his or her past relevant work; if not, determine whether the applicant is able to perform other work that exists in substantial numbers in the national economy. 20 CFR §§ 404.1520, 416.920; see also Bowen v. Yuckert, 482 U.S. 137, 140-41 (1987). 28 -6- 1 The Court must affirm an ALJ’s findings of fact if they are supported by 2 substantial evidence and free from reversible legal error. See 42 U.S.C. 405(g); see also 3 Marcia v. Sullivan, 900 F.2d 172, 174 (9th Cir. 1990). Substantial evidence means “more 4 than a mere scintilla,” but less than a preponderance, i.e., “such relevant evidence as a 5 reasonable mind might accept as adequate to support a conclusion.” See, e.g., Richardson 6 v. Perales, 402 U.S. 389, 401 (1971); Clem v. Sullivan, 894 F.2d 328, 330 (9th Cir. 7 1990). 8 9 In order to determine whether substantial evidence supports a decision, the record as a whole must be considered, weighing both the evidence that supports and the evidence 10 that detracts from the ALJ’s conclusion. See Richardson, 402 U.S. at 401; see also 11 Tylitzki v. Shalala, 999 F.2d 1411, 1413 (9th Cir. 1993). Nonetheless, “[i]t is for the 12 ALJ, not the courts, to resolve ambiguities and conflicts in the medical testimony and 13 evidence.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (citations and internal 14 quotation marks omitted). The ALJ may draw inferences logically flowing from the 15 evidence, and “[w]here evidence is susceptible to more than one rational interpretation, it 16 is the ALJ’s conclusion which must be upheld.” Id. (citation omitted). However, “[i]f 17 there is medical evidence establishing an objective basis for some degree of pain and 18 related symptoms, and no evidence affirmatively suggesting that the claimant was 19 malingering, the [ALJ’s] reason for rejecting the claimant’s testimony must be ‘clear and 20 convincing’ and supported by specific findings.” Dodrill v. Shalala, 12 F.3d 915, 917 21 (9th Cir. 1993) (quotations omitted). And “[w]hen an ALJ’s reasons for rejecting the 22 claimant’s testimony are legally insufficient and it is clear from the record that the ALJ 23 would be required to determine the claimant is disabled if he had credited the claimant’s 24 testimony, [the court must] remand for a calculation of benefits.” Orn v. Astrue, 495 F.3d 25 625, 640 (9th Cir. 2007) (quotation omitted). Regardless, “[i]f the evidence can support 26 either affirming or reversing the ALJ's conclusion, [then the Court] may not substitute 27 [its] judgment for that of the ALJ.” Robbins v. Social Sec. Admin., 466 F.3d 880, 882 28 (9th Cir. 2006). -7- 1 IV. DISCUSSION 2 Plaintiff contends that the ALJ (1) “misinterpreted evidence to the detriment of the 3 claimant,” and (2) “improperly rejected the credibility of the claimant.” (Dkt. #15, pp. 4- 4 5). 5 A. 6 Plaintiff argues that the evidence shows that Plaintiff “needed two subsequent The ALJ Properly Considered the Evidence 7 surgeries and extensive physical therapy which would not have allowed her to return to 8 any work on a sustained full-time basis,” she “had not recovered sufficiently,” she “had 9 no desk work skills and it is not unreasonable that no employer would have kept her 10 employed during the two subsequent surgeries and multiple weekly therapy session,” and 11 because she “is unable to communicate effectively in English, the ability to find a ‘desk 12 work job’ in an English speaking society would be very difficult, if not impossible.” (Dkt. 13 #15, p.4). 14 However, Plaintiff acknowledges that she “never had a 12 consecutive month 15 period of disability due to her being released to desk work.” (Id.). That, in and of itself, 16 is sufficient to deny Plaintiff’s application for a period of disability benefits. For 17 purposes of obtaining disability insurance benefits under the Act, a disability is defined as 18 inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. 19 20 42 U.S.C. § 423(d)(1)(A) (emphasis added); see Barnhart v. Walton, 535 U.S. 212, 218 21 (2002) (“[T]he ‘impairment’ must last 12 months and also be severe enough to prevent 22 the claimant from engaging in virtually any ‘substantial gainful work.’”) (emphasis 23 added); Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1460 (9th Cir. 24 1995) (“The statutory schema thus requires that a disability be continuously disabling 25 from the time of onset during insured status to the time of application for benefits.”) 26 (emphasis added). Here, Plaintiff sustained an injury to her left knee on July 17, 2001. 27 She continued to work for some period of time thereafter, and then underwent the first 28 -8- 1 surgical operation on her left knee on September 26, 2001. Shortly thereafter, Plaintiff’s 2 physician released her to desk work. Plaintiff returned to work; although Plaintiff 3 testified that her employer made her leave the next day because there were no desk jobs 4 available, that does not mean that Plaintiff was unable to perform any substantial gainful 5 work. As Defendant points out, “whether [Plaintiff’s] prior employer would have kept 6 her employed, or whether a new employer would have hired her [and whether it would 7 have been difficult to find new employment], is immaterial to whether substantial 8 evidence supports the ALJ’s decision that Plaintiff had the functional capacity to perform 9 other work existing in significant numbers in the national economy.” (Dkt. #22, p.3); see 10 also 20 C.F.R.§§ 404.1520(a)(v), (g); 404.1566(a)(1)-(3)(c) (2007) (listing factors for 11 determining whether other jobs exist in significant numbers that a claimant can perform). 12 Plaintiff was also released to desk work only soon after her second surgery on 13 January 2, 2002. In addition, Plaintiff was released to desk work approximately two 14 months after her third surgery on March 20, 2002. Thus, Plaintiff’s treating physician 15 implicitly opined that Plaintiff was intermittently unable to work for approximately three 16 months, which is considerably less than the twelve months of continuous disability 17 required for an award of disability insurance benefits. See 20 C.F.R. § 404.1509 (2007). 18 As such, the ALJ’s conclusion that Plaintiff did not experience a period of disability of 12 19 months between July 17, 2001 and April 1, 2003, was not based on a misinterpretation of 20 the evidence. 21 In addition, relying on, among other things, the fact that Plaintiff’s treating 22 physician released Plaintiff to desk work (i.e., sedentary work) after each surgery, the 23 ALJ found that Plaintiff’s nonexertional limitations did not significantly affect her ability 24 to perform a wide range of unskilled sedentary work, and thus a finding of not disabled 25 was directed by the Medical-Vocational Guidelines Rule 201.23. See 20 C.F.R. § 26 404.1501 et seq.; Part 404, Subpart P, Appendix 2, Rule 201.23 (2007). Plaintiff does not 27 appear to contest this finding. 28 -9- 1 Further, even in the presence of nonexertional limitations such as modest 2 exertional pain (as Plaintiff experienced here), the ALJ may resolve a case by finding that 3 there are numerous entry-level, unskilled jobs existing in the national economy that 4 claimant could potentially perform, despite his or her recognized limitations. See 20 5 C.F.R. § 404.1566(d)(1) (2007). Here, the ALJ properly relied on the vocational expert’s 6 prior testimony that an individual with Plaintiff’s age, education, work experience, and 7 residual functional capacity, would be able to perform the requirements of representative 8 occupations that exist in the national economy. See Osenbrock v. Apfel, 240 F.3d 1157, 9 1163-64 (9th Cir. 2001) (holding that an ALJ may rely upon the testimony of a vocational 10 11 expert). Accordingly, the Court holds that the ALJ did not misinterpret the evidence 12 presented and properly found that Plaintiff’s impairment did not meet the 12-month 13 durational requirement, The Court also holds that, based on the testimony of the 14 vocational expert, the medical record, and the Medical-Vocational Guidelines, the ALJ 15 properly concluded that Plaintiff was not disabled as defined by the Social Security Act 16 from July 17, 2001, the alleged disability onset date, throughout the period of disability. 17 See Andrews, 53 F.3d at 1039 (“Where evidence is susceptible to more than one rational 18 interpretation, it is the ALJ’s conclusion which must be upheld.”) (citation omitted). 19 B. The ALJ Properly Discounted Plaintiff’s Credibility 20 Plaintiff contends that the ALJ committed error by improperly rejecting her 21 testimony regarding the severity of her symptoms, such as her pain level, and its impact 22 on her functional abilities. (Dkt. #15, pp. 4-5). However, “[a]n ALJ is not required to 23 believe every allegation of disabling pain or other non-exertional impairment.” Orn, 495 24 F.3d at 635 (citation omitted). Nonetheless, “if there is medical evidence establishing an 25 objective basis for some degree of pain and related symptoms, and no evidence 26 affirmatively suggesting that the claimant was malingering, the [ALJ]’s reason for 27 rejecting the claimant’s testimony must be ‘clear and convincing’ and supported by 28 specific findings.” Dodrill, 12 F.3d at 918. General findings are insufficient; rather the - 10 - 1 ALJ must identify what evidence is not credible and what evidence undermines the 2 claimant’s complaints. Id.; Light v. Social Sec. Admin., 119 F>3d 789, 792 (9th Cir. 3 1997) (“If a claimant produces evidence that he suffers from an ailment that could cause 4 pain, ‘the ALJ can reject the claimant’s testimony about the severity of [her] symptoms 5 only by offering specific, clear and convincing reasons for doing so.’”) (quoting Smolen 6 v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)). Here, Plaintiff contends that the ALJ did 7 not provide the requisite reasons supported by the evidence to reject Plaintiff’s credibility 8 regarding the severity of her symptoms. 9 In reviewing the record on this point, the Court finds that the ALJ properly 10 considered relevant factors in reaching his credibility determination. See Magallenes, 11 881 F.2d at 750 (noting that “the ALJ is responsible for determining credibility and 12 resolving conflicts in medical testimony”). For instance, the ALJ cited multiple relevant 13 factors recognized by the Ninth Circuit in discounting Plaintiff’s testimony as to the 14 severity of her symptoms. See Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991) 15 (en banc) (noting that relevant factors an ALJ may consider include the nature, duration, 16 location, onset, and intensity of pain, functional restrictions and claimant's daily 17 activities); see Light, 119 F.3d at 792 (“In weighing a claimant’s credibility, the ALJ may 18 consider his reputation for truthfulness, inconsistencies either in his testimony or between 19 his testimony and his conduct, his daily activities, his work record, and testimony from 20 physicians and third parties concerning the nature, severity, and effect of the symptoms of 21 which he complains.”); see also SSR 96-7p. The ALJ noted that Plaintiff testified at the 22 first hearing that her pain level was between a six and a nine throughout the alleged 23 period of disability, but then testified at the second hearing that her pain level was ranged 24 between a four and an eight throughout the period of disability. (AR 22, 396, 416). 25 The ALJ also noted that Plaintiff’s testimony that her pain level was between a six 26 and a nine was inconsistent with the fact that Plaintiff’s treating physician released 27 Plaintiff to desk work, Plaintiff returned to work, and Plaintiff was only unable to 28 continue employment at her previous workplace because there were no desk jobs - 11 - 1 available (not because she was in too much pain). (AR 22, 312, 328, 337). Plaintiff’s 2 alleged limitation – that she was in too much pain to do desk work (or other sedentary 3 work) during the alleged disability period – is simply not supported by the medical 4 record. See, e.g., Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (“While 5 subjective pain testimony cannot be rejected on the sole ground that it is not fully 6 corroborated by objective medical evidence, the medical evidence is still a relevant factor 7 in determining the claimant’s pain and its disabling effects.”). In addition, the ALJ noted 8 that Plaintiff’s daily activities, which included cooking, doing the dishes, and helping the 9 children in the household get ready for school in the morning, are inconsistent with a 10 disabling impairment. (AR 22, 113). While Plaintiff disagrees with the ALJ’s 11 determination, and is sympathetic to the fact that Plaintiff injured her knee and underwent 12 three surgeries and physical therapy as a result, the Court’s review is limited to merely 13 determining whether the ALJ provided the requisite reasons to support his adverse 14 credibility determination. And in reviewing the ALJ’s specific findings and bases for his 15 determination, the Court cannot conclude that the ALJ's credibility analysis was not 16 supported by substantial evidence and free of legal error. See, e.g., Sample v. Schweiker, 17 694 F.2d 639, 642 (9th Cir. 1982) (“Our sole inquiry is whether the record, read as a 18 whole, yields such evidence as would allow a reasonable mind to accept the conclusions 19 reached by the law judge.”) (citations omitted). 20 V. 21 SUMMARY The Court finds that the ALJ did not misinterpret the evidence in the record or 22 improperly discount Plaintiff’s testimony regarding the severity of her symptoms. The 23 ALJ properly found, and Plaintiff acknowledged, that she did not suffer a disability that 24 lasted for a continuous period of not less than 12 months as required for an award of 25 benefits. In addition, the ALJ made the necessary credibility determinations and provided 26 specific and legitimate reasons that appear to be supported by substantial evidence in the 27 record. Further, the ALJ properly relied on the findings of Plaintiff’s treating physician, 28 Dr. Yacobucci, and the testimony of the vocational expert, to find that although Plaintiff’s - 12 - 1 impairments were severe, Plaintiff’s residual functional capacity did not prevent her from 2 performing sedentary work. Thus, based on a review of all the facts and the record 3 presented, the Court finds that there is substantial evidence to support the ALJ’s decision. 4 Accordingly, 5 IT IS HEREBY ORDERED that Plaintiff’s Motion for Summary Judgment is 6 7 8 9 10 11 DENIED. (Dkt. #13). IT IS FURTHER ORDERED that Defendant’s Cross-Motion for Summary Judgment is GRANTED. (Dkt. #22). IT IS FURTHER ORDERED directing the Clerk of the Court to enter judgment accordingly. DATED this 26th day of March, 2009. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 13 -
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