Wagner

MEMORANDUM **

Plaintiff John C. Wagner appeals the district court’s order affirming a denial of disability benefits under the Social Security Act, 42 U.S.C. §§ 401-434 . Although we might have come to a different conclusion were we weighing the evidence in the first instance, substantial evidence supports the administrative law judge’s (“ALJ”) decision. We therefore affirm.

1. The ALJ did not err in discrediting Plaintiff’s testimony regarding the extent of his pain. The ALJ made “specific findings justifying [his] decision” that Plaintiffs testimony was not fully credible. Fair v. Bowen, 885 F.2d 597, 604 (9th Cir.1989). The ALJ acknowledged pain but noted inconsistencies between Plaintiffs testimony and his physician’s records and previously reported daily activities. See Light v. Soc. Sec. Admin., 119 F.3d 789 , 792 (9th Cir.1997) (noting that inconsistencies between testimony and other evidence is a justifiable reason to discredit testimony). Treating physicians found Plaintiff to have normal reflexes and motor abilities. Plaintiff had previously reported that he could walk up to three miles, perform yard work, and drive his children to and from school. Plaintiffs treatment…

dissenting.

It is uncontested that the appellant, John Wagner, has a degenerative back disorder, has had three major back surgeries, and takes six to eight Vicodin 2 every day as prescribed by his physician. None of the physicians who examined Wagner, or reviewed his case, concluded that he did not experience back pain. Today the majority, however, affirms the Administrative Law Judge’s (“ALJ”) disability determination that did not consider any of Wagner’s limitations from his back pain.

The ALJ dismissed Wagner’s testimony about his back pain and resulting activity limitations as “not fully creditable.” That credibility determination may be upheld only if it is supported by “substantial evidence” and is not based on legal error. Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir.2006). The paucity of the evidence that could even arguably support the ALJ’s decision is apparent from the majority’s memorandum disposition.

The majority first states that “[tjreating physicians found Plaintiff to have normal reflexes and motor abilities.” The majority does not mention that plaintiffs examining physician, Dr. McAuley, described his gait as “slow.” Nor does the majority explain how or…