Rosa Amezcua v. Michael J Astrue, No. 5:2007cv01293 - Document 18 (C.D. Cal. 2008)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Alicia G. Rosenberg. IT IS HEREBY ORDERED that the matter is remanded for further proceedings consistent with this Opinion. (See Order for details.) (mp)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ROSA AMEZCUA, 12 Plaintiff, 13 v. 14 15 MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. 16 17 ) ) ) ) ) ) ) ) ) ) ) ) NO. EDCV 07-1293 AGR MEMORANDUM OPINION AND ORDER Rosa Amezcua filed this action on October 15, 2007. Pursuant to 28 18 19 U.S.C. § 636(c), the parties filed Consents to proceed before Magistrate Judge 20 Rosenberg on December 5 and December 6, 2007. On June 6, 2008, the parties 21 filed a Joint Stipulation ( JS ) that addressed the disputed issues. The Court has 22 taken the matter under submission without oral argument. Having reviewed the entire file, the Court remands for further proceedings 23 24 consistent with this Opinion. 25 /// 26 /// 27 /// 28 /// 1 I. 2 PROCEDURAL BACKGROUND 3 On August 24, 2004, Amezcua filed applications for disability insurance 4 benefits and supplemental security income benefits. A.R. 12. The 5 Commissioner denied the applications initially and on reconsideration. Id. The 6 Administrative Law Judge ( ALJ ) conducted a hearing on February 5, 2007, at 7 which Amezcua and a vocational expert testified. A.R. 216-236. On March 9, 8 2007, the ALJ issued a decision denying benefits. A.R. 9-17. On August 25, 9 2007, the Appeals Council denied Amezcua s request for review. A.R. 4-6. This 10 lawsuit followed. 11 II. 12 STANDARD OF REVIEW 13 Pursuant to 42 U.S.C. § 405(g), this Court reviews the Commissioner s 14 decision to deny benefits. The decision will be disturbed only if it is not 15 supported by substantial evidence, or if it is based upon the application of 16 improper legal standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995); 17 Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 18 Substantial evidence means more than a mere scintilla but less than a 19 preponderance it is such relevant evidence that a reasonable mind might 20 accept as adequate to support the conclusion. Moncada, 60 F.3d at 523. In 21 determining whether substantial evidence exists to support the Commissioner s 22 decision, the Court examines the administrative record as a whole, considering 23 adverse as well as supporting evidence. Drouin, 966 F.2d at 1257. When the 24 evidence is susceptible to more than one rational interpretation, the Court must 25 defer to the Commissioner s decision. Moncada, 60 F.3d at 523. 26 /// 27 /// 28 /// 2 1 III. 2 DISCUSSION 3 A. 4 A person qualifies as disabled, and thereby eligible for such benefits, only 5 if his physical or mental impairment or impairments are of such severity that he is 6 not only unable to do his previous work but cannot, considering his age, 7 education, and work experience, engage in any other kind of substantial gainful 8 work which exists in the national economy. Barnhart v. Thomas, 540 U.S. 20, 9 21-22, 124 S. Ct. 376, 157 L. Ed. 2d 333 (2003) (citation and internal quotation Disability 10 marks omitted). 11 B. 12 The ALJ found that Amezcua had severe impairments of asthma and 13 status post pacemaker insertion. A.R. 14. He determined that Amezcua had the 14 residual functional capacity for light work with [the] ability to lift/carry no more 15 than 20 pounds occasionally; the need to avoid even moderate exposure to 16 extreme heat, extreme cold, and hazards; and the need to avoid respiratory 17 irritants, such as dust, fumes, and gases. A.R. 15. The ALJ concluded that 18 Amezcua could perform her past relevant work as a laundry worker. A.R. 16. The ALJ s Findings 19 C. 20 At the hearing, Amezcua testified as to her work restrictions based on her Plaintiff s Credibility 21 asthma and heart condition. A.R. 223. Her treating physician says that she 22 cannot lift more than 10 pounds and cannot walk a lot. Id. She gets chest pains 23 and dizziness from her heart condition when she walks a lot or does movements 24 with her arms like she did as a laundry folder. A.R. 226. She rests after 15 25 minutes of walking. Id. She also stated that she gets very tired from too much 26 standing. A.R. 227. Amezcua testified that she uses a nebulizer for her asthma 27 approximately 2 to 4 times a day, requiring 10 to 15 minute treatments on each 28 /// 3 1 occasion. Id. Her treating physician told her that she cannot go back to laundry 2 work because of the chemicals, lint and dust. A.R. 229. 3 To determine whether a claimant s testimony regarding subjective pain or 4 symptoms is credible, an ALJ must engage in a two-step analysis. Lingenfelter 5 v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). First, the ALJ must 6 determine whether the claimant has presented objective medical evidence of an 7 underlying impairment which could reasonably be expected to produce the pain 8 or other symptoms alleged. The claimant, however, need not show that her 9 impairment could reasonably be expected to cause the severity of the symptom 10 she has alleged; she need only show that it could reasonably have caused some 11 degree of the symptom. Thus, the ALJ may not reject subjective symptom 12 testimony . . . simply because there is no showing that the impairment can 13 reasonably produce the degree of symptom alleged. Id. at 1036 (citations 14 omitted); Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (en banc). 15 Second, if the claimant meets this first test, and there is no evidence of 16 malingering, the ALJ can reject the claimant s testimony about the severity of her 17 symptoms only by offering specific, clear and convincing reasons for doing so. 18 Lingenfelter, 504 F.3d at 1036 (citations omitted). In making a credibility 19 determination, the ALJ must specifically identify what testimony is credible and 20 what testimony undermines the claimant s complaints. Greger v. Barnhart, 464 21 F.3d 968, 972 (9th Cir. 2006) (citation omitted). 22 Under the first prong, the ALJ properly found that there was no objective 23 medical evidence of an underlying impairment to support her claim of back or 24 arthritis pain. A.R. 16. However, there is objective medical evidence of asthma 25 and a heart condition. A.R. 14-15. 26 Under the second prong, the ALJ rejected Amezcua s subjective 27 allegations of work restrictions due to her asthma and heart condition based 28 solely upon his interpretation of her medical records. Although the ALJ may 4 1 consider medical records, he cannot reject a claimant s credibility based on this 2 factor alone. Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). Moreover, 3 the Court notes that the medical records appear to support Amezcua s 4 allegations.1 5 The Court credits Amezcua s testimony as true insofar as it established 6 that she can no longer perform her past relevant work. Where an ALJ improperly 7 rejects the claimant s testimony regarding her limitations, the claimant s 8 testimony is credited as a matter of law. Lester v. Chater, 81 F.3d 821, 834 (9th 9 Cir. 1995). The vocational expert testified that Amezcua s past relevant work 10 could not be performed (a) if she were limited to lifting ten pounds, (b) if she 11 required a sit/stand option, or (c) if she were restricted from work requiring 12 exposure to lint. A.R. 233-234. Based on Amezcua s testimony as to her work 13 restrictions, she cannot perform her past relevant work. 14 Accordingly, this case is remanded for inquiry at Step Five of the 15 sequential analysis. At Step Five, the Commissioner bears the burden of 16 demonstrating there is other work in significant numbers in the national economy 17 the claimant can do. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 18 2006). If the Commissioner satisfies this burden, the claimant is not disabled and 19 not entitled to disability benefits. If the Commissioner cannot meet this burden, 20 the claimant is disabled and entitled to disability benefits. Id. 21 There are two ways for the Commissioner to meet the burden of showing 22 that there is other work in significant numbers in the national economy that 23 claimant can do: (1) by the testimony of a vocational expert, or (2) by reference 24 to the Medical-Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2. 25 Lounsburry, 486 F.3d at 1114. Where a claimant suffers only exertional 26 27 28 1 In addition, the spirometry results state that the degree of obstruction in lung function may be underestimated (A.R. 116, 119), and that additional restrictive lung defect cannot be excluded by spirometry alone (A.R. 119). 5 1 limitations, the ALJ must consult the grids. Where a claimant suffers only non- 2 exertional limitations, the grids are inappropriate, and the ALJ must rely on other 3 evidence. Where a claimant suffers from both exertional and non-exertional 4 limitations, the ALJ must consult the grids first. Id. at 1115 (citations omitted). 5 However, the grids are inapplicable when a claimant s non-exertional limitations 6 are sufficiently severe so as to significantly limit the range of work permitted by 7 the claimant s exertional limitations. Hoopai v. Astrue, 499 F.3d 1071, 1075 (9th 8 Cir. 2007) (citation and internal quotation marks omitted); Kail v. Heckler, 722 9 F.2d 1496, 1498 (9th Cir. 1984) (inability to tolerate lint or dust constitutes 10 nonexertional limitation). 11 IV. 12 ORDER 13 14 15 16 IT IS HEREBY ORDERED that the matter is remanded for further proceedings consistent with this Opinion. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel. 17 18 19 DATED: September 29, 2008 ALICIA G. ROSENBERG United States Magistrate Judge 20 21 22 23 24 25 26 27 28 6
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