Lino Parra v. Michael J Astrue, No. 5:2009cv01586 - Document 18 (C.D. Cal. 2010)
Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Jacqueline Chooljian. For the foregoing reasons, the decision of the Commissioner of Social Security is reversed in part, and this matter is remanded for further administrative action consistent with this Opinion. LET JUDGMENT BE ENTERED ACCORDINGLY. (ag)
Download PDF
<![CDATA[
Lino Parra v. Michael J Astrue Doc. 18 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 LINO PARRA, 12 Plaintiff, 13 14 15 16 17 v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. _________________________ ) Case No. EDCV 09-1586 JC ) ) ) MEMORANDUM OPINION AND ) ORDER OF REMAND ) ) ) ) ) ) ) 18 19 I. On August 31, 2009, plaintiff Lino Parra (“plaintiff”) filed a Complaint 20 21 22 23 seeking review of the Commissioner of Social Security’s denial of plaintiff’s application for benefits. The parties have filed a consent to proceed before a United States Magistrate Judge. This matter is before the Court on the parties’ cross motions for summary 24 25 26 27 28 SUMMARY judgment, respectively (“Plaintiff’s Motion”) and (“Defendant’s Motion”). The Court has taken both motions under submission without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; September 3, 2009 Case Management Order ¶ 5. /// 1 Dockets.Justia.com 1 Based on the record as a whole and the applicable law, the decision of the 2 Commissioner is REVERSED AND REMANDED for further proceedings 3 consistent with this Memorandum Opinion and Order of Remand because the 4 Administrative Law Judge (“ALJ”) failed properly to consider competent lay 5 evidence. 6 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE 7 DECISION 8 On March 14, 2006, plaintiff filed applications for Supplemental Security 9 Income and Disability Insurance benefits. (Administrative Record (“AR”) 27). 10 Plaintiff asserted that he became disabled on June 15, 2004, due to: seizures, 11 migraines, back pain, anxiety, alcoholism, hepatitis C, possible liver disease, and 12 epilepsy. (AR 83). The ALJ examined the medical record and heard testimony 13 from plaintiff (who was represented by counsel) on August 13, 2008. (AR 5-19). 14 On September 29, 2008, the ALJ determined that plaintiff was not disabled 15 through the date of the decision. (AR 27-35). Specifically, the ALJ found: 16 (1) plaintiff suffered from the following severe impairments: seizure disorder, 17 obesity and history of alcohol abuse (AR 29); (2) plaintiff suffered from the 18 following non-severe impairments: history arterial hypertension, right lower lobe 19 atelectasis, tension headache, hepatitis C, back pain and neck pain (AR 30); 20 (3) plaintiff’s impairments, considered singly or in combination, did not meet or 21 medically equal one of the listed impairments (AR 31); (4) plaintiff retained the 22 residual functional capacity to perform light work with certain exertional 23 limitations1 (AR 31); (5) plaintiff could not perform his past relevant work (AR 24 25 1 More specifically, the ALJ determined that plaintiff could perform light work but (i) is 26 able to perform postural activities only on a frequent basis; (ii) should not drive, or climb a 27 ladder, rope or scaffolds; and (iii) should not work with hazards such as unprotected heights or dangerous machinery. (AR 31). The ALJ defined “frequent” as “occurring from one-third to two 28 thirds of the time or approximately 6 hours in an 8-hour workday.” (AR 31). 2 1 33); (5) there are jobs that exist in significant numbers in the national economy 2 that plaintiff could perform (AR 34); and (6) plaintiff’s allegations regarding his 3 limitations were not totally credible (AR 31). 4 The Appeals Council denied plaintiff’s application for review. (AR 17). 5 III. APPLICABLE LEGAL STANDARDS 6 A. 7 To qualify for disability benefits, a claimant must show that he is unable to Sequential Evaluation Process 8 engage in any substantial gainful activity by reason of a medically determinable 9 physical or mental impairment which can be expected to result in death or which 10 has lasted or can be expected to last for a continuous period of at least twelve 11 months. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing 42 U.S.C. 12 § 423(d)(1)(A)). The impairment must render the claimant incapable of 13 performing the work he previously performed and incapable of performing any 14 other substantial gainful employment that exists in the national economy. Tackett 15 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). 16 In assessing whether a claimant is disabled, an ALJ is to follow a five-step 17 sequential evaluation process: 18 (1) 19 20 Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. (2) Is the claimant’s alleged impairment sufficiently severe to limit 21 his ability to work? If not, the claimant is not disabled. If so, 22 proceed to step three. 23 (3) Does the claimant’s impairment, or combination of 24 impairments, meet or equal an impairment listed in 20 C.F.R. 25 Part 404, Subpart P, Appendix 1? If so, the claimant is 26 disabled. If not, proceed to step four. 27 /// 28 /// 3 1 (4) Does the claimant possess the residual functional capacity to 2 perform his past relevant work? If so, the claimant is not 3 disabled. If not, proceed to step five. 4 (5) Does the claimant’s residual functional capacity, when 5 considered with the claimant’s age, education, and work 6 experience, allow him to adjust to other work that exists in 7 significant numbers in the national economy? If so, the 8 claimant is not disabled. If not, the claimant is disabled. 9 Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th 10 Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920). 11 The claimant has the burden of proof at steps one through four, and the 12 Commissioner has the burden of proof at step five. Bustamante v. Massanari, 262 13 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett); see also Burch, 400 F.3d at 679 14 (claimant carries initial burden of proving disability). 15 B. 16 Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of Standard of Review 17 benefits only if it is not supported by substantial evidence or if it is based on legal 18 error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 19 2006) (citing Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 20 (9th Cir. 1995)). Substantial evidence is “such relevant evidence as a reasonable 21 mind might accept as adequate to support a conclusion.” Richardson v. Perales, 22 402 U.S. 389, 401 (1971) (citations and quotations omitted). It is more than a 23 mere scintilla but less than a preponderance. Robbins, 466 F.3d at 882 (citing 24 Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)). 25 To determine whether substantial evidence supports a finding, a court must 26 “‘consider the record as a whole, weighing both evidence that supports and 27 evidence that detracts from the [Commissioner’s] conclusion.’” Aukland v. 28 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d 4 1 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming 2 or reversing the ALJ’s conclusion, a court may not substitute its judgment for that 3 of the ALJ. Robbins, 466 F.3d at 882 (citing Flaten, 44 F.3d at 1457). 4 IV. DISCUSSION 5 A. A Remand is Appropriate Because the ALJ Erroneously Failed to 6 Address the Lay Evidence Supplied by Plaintiff’s Spouse and the 7 Court Cannot Find Such Error Was Harmless 8 Plaintiff contends that a reversal or remand is appropriate because the ALJ 9 erroneously failed to address the written statement supplied by plaintiff’s spouse 10 and to provide adequate reasons for rejecting such evidence. Defendant concedes 11 the ALJ erred, but contends such error was harmless and does not justify remand. 12 As this Court cannot find that the ALJ’s error was harmless, a remand is 13 warranted. 14 15 16 1. Pertinent Facts a. Plaintiff’s Statements and Testimony In a Function Report dated June 21, 2006, plaintiff stated that he: (i) has 17 anxiety attacks “every morning” and “all the time”; (ii) “stresses all the time” and 18 is nervous; (iii) is not able to sleep at night due to anxiety attacks, stress and 19 nervousness; (iv) is unable to do house or yard work due to body aches, nerves 20 and his mental and physical disabilities; (v) goes out 2-3 times a day, but cannot 21 drive himself, and cannot go out alone due to seizures, anxiety attacks and loss of 22 concentration; (vi) is unable to handle money; (vii) needs reminders for doctors 23 appointments, and always needs his spouse to accompany him; (viii) has difficulty 24 with lifting, bending, kneeling, memory, completing tasks, concentration, 25 understanding, following instructions, is very absent minded, has body aches, 26 muscle spasms, nerves and anxiety attacks; (ix) can walk less than 1/4 mile 27 without resting, can pay attention for only 30 minutes or less; (x) does not finish 28 what he starts; (xi) does not handle stress well, has constant fear of seizures, 5 1 cannot be around people; (xii) has seizures that “drain[] his mind” and cause 2 “body aches for several days”; and (xiii) has epilepsy, depression and hepatitis C. 3 (AR 91-98). 4 In a Seizure Questionnaire dated June 21, 2006, plaintiff stated that: (i) he 5 has seizures about four to six times a year that each last approximately 15 minutes; 6 (ii) after a seizure he is “mentally exhausted,” his body is “very sore,” and he 7 cannot resume normal activities for “several weeks”; and (iii) he still has seizures 8 even when taking medication. (AR 99-101). 9 On August 13, 2008, at the administrative hearing, plaintiff testified 10 regarding his symptoms, pain and limitations. (AR 10-15). He stated, inter alia, 11 that: (i) he has seizures and memory loss (AR 11, 15); (ii) his wife “does 12 everything” for him, and he cannot even fill out an application (AR 11); (iii) he is 13 a “really nervous person” and “anything stresses [him] out” (AR 11); (iv) he gets 14 “dizzy all the time,” has to sit down and rest, and has seizures during the day” (AR 15 15); (v) his medication does not have the seizures under control (AR 15). 16 17 b. Statements of Plaintiff’s Spouse On June 22, 2006, plaintiff’s spouse, Cynthia M. Parra, who had known 18 plaintiff for approximately 24 years before the administrative hearing, completed a 19 function report regarding her observations of plaintiff’s alleged impairments and 20 their asserted impact on plaintiff’s daily activities. (AR 102-09). She reported, 21 inter alia, that plaintiff: (i) wakes every day with anxiety attacks, depression, and 22 always does not feel good; (ii) “gets very tired in [a] short time”; (iii) is awakened 23 by anxiety; (iv) has cramps and muscle spasms in his back to where plaintiff will 24 “yell he’s in pain,” has “back spasms [that] are very painful for him”; (v) needs 25 medication reminders; (vi) does not prepare his own meals or do house or yard 26 work because he gets “exhausted very fast” and “can’t lift [due to] loss of 27 breath[]”; (vii) cannot drive or go out alone; (viii) cannot take care of money 28 because he is very absent minded; (ix) has difficulty with lifting, squatting, 6 1 bending, walking, kneeling, memory, completing tasks, concentration and 2 following instructions; (x) can walk only for 1/8 to 1/4 of a mile before he needs 3 to rest; (xi) can pay attention for only 30 minutes, is unable to follow written 4 instructions and does not follow spoken instructions well due to memory loss; and 5 (xii) does not handle stress or changes in routine well. (AR 102-09). 6 7 2. Pertinent Law Lay testimony as to a claimant’s symptoms is competent evidence that an 8 ALJ must take into account, unless he expressly determines to disregard such 9 testimony and gives reasons germane to each witness for doing so. Stout, 454 10 F.3d at 1056 (citations omitted); Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 11 2001); see also Robbins, 466 F.3d at 885 (ALJ required to account for all lay 12 witness testimony in discussion of findings) (citation omitted); Regennitter v. 13 Commissioner, 166 F.3d 1294, 1298 (9th Cir. 1999) (testimony by lay witness 14 who has observed claimant is important source of information about claimant’s 15 impairments); Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996) (lay witness 16 testimony as to claimant’s symptoms or how impairment affects ability to work is 17 competent evidence and therefore cannot be disregarded without comment) 18 (citations omitted); Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987) (ALJ 19 must consider observations of non-medical sources, e.g., lay witnesses, as to how 20 impairment affects claimant’s ability to work). The standards discussed in these 21 authorities appear equally applicable to written statements. Cf. Schneider v. 22 Commissioner of Social Security Administration, 223 F.3d 968, 974-75 (9th Cir. 23 2000) (ALJ erred in failing to consider letters submitted by claimant’s friends and 24 ex-employers in evaluating severity of claimant’s functional limitations). 25 In cases in which “the ALJ’s error lies in a failure to properly discuss 26 competent lay testimony favorable to the claimant, a reviewing court cannot 27 consider the error harmless unless it can confidently conclude that no reasonable 28 /// 7 1 ALJ, when fully crediting the testimony, could have reached a different disability 2 determination.” Robbins, 466 F.3d at 885 (quoting Stout, 454 F.3d at 1055-56). 3 3. 4 Analysis As the above-stated facts reflect, the statements of plaintiff’s spouse are, on 5 the whole, consistent with, and corroborate plaintiff’s testimony and statements 6 regarding his symptoms, pain and limitations. Plaintiff’s spouse’s statements 7 constituted competent lay evidence that the ALJ was required to take into account 8 unless he expressly determined to disregard it and gave reasons therefor. It is 9 undisputed that the ALJ erred in silently disregarding such evidence. 10 Although defendant urges the Court to conclude that this error was 11 harmless, the Court cannot do so because it cannot “confidently conclude that no 12 reasonable ALJ, when fully crediting the testimony, could have reached a different 13 disability determination.” Stout, 454 F.3d at 1055-56. If fully credited, plaintiff’s 14 spouse’s statements substantially support plaintiff’s description of his symptoms, 15 pain and limitations, and could have caused a reasonable ALJ to reach a different 16 disability determination. Accordingly, this Court cannot deem the ALJ’s failure to 17 address the lay witness statements supplied by plaintiff’s spouse harmless.2 18 /// 19 /// 20 /// 21 /// 22 23 2 Defendant suggests that because plaintiff’s spouse’s statements were largely consistent 24 with plaintiff’s testimony and written evidence, they should be discounted for the same reasons 25 that the ALJ discounted plaintiff’s testimony. (Defendant’s Motion at 2-3). While the ALJ may well have discounted plaintiff’s spouse’s statements for such reasons, he did not so state in his 26 decision, and the Court cannot so conclude on this record. This Court may not affirm the 27 decision of an agency on a ground that the agency did not invoke in making its decision. Stout, 454 F.3d at 1054 (“[T]he ALJ, not the district court is required to provide [rationale] for rejecting 28 lay testimony.”) (citations omitted). 8 1 V. CONCLUSION3 2 For the foregoing reasons, the decision of the Commissioner of Social 3 Security is reversed in part, and this matter is remanded for further administrative 4 action consistent with this Opinion.4 5 LET JUDGMENT BE ENTERED ACCORDINGLY. 6 DATED: September 30, 2010 7 ______________/s/___________________ Honorable Jacqueline Chooljian UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 3 The Court need not, and has not adjudicated plaintiff’s other challenges to the ALJ’s 23 decision, except insofar as to determine that a reversal and remand for immediate payment of 24 benefits would not be appropriate. 25 26 27 28 4 When a court reverses an administrative determination, “the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.” Immigration & Naturalization Service v. Ventura, 537 U.S. 12, 16 (2002) (citations and quotations omitted). Remand is proper where, as here, additional administrative proceedings could remedy the defects in the decision. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). 9
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
