Daniel Armenta v. Michael J Astrue, No. 5:2012cv01160 - Document 18 (C.D. Cal. 2013)
Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Charles F. Eick. Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion. (sp)
Download PDF
<![CDATA[
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 DANIEL ARMENTA, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, COMMISSIONER ) OF SOCIAL SECURITY, ) ) ) Defendant. ) ) ___________________________________) NO. ED CV 12-1160-E MEMORANDUM OPINION AND ORDER OF REMAND 18 19 Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS 20 HEREBY ORDERED that Plaintiff s and Defendant s motions for summary 21 judgment are denied and this matter is remanded for further 22 administrative action consistent with this Opinion. 23 24 PROCEEDINGS 25 26 Plaintiff filed a complaint on July 20, 2012, seeking review of 27 the Commissioner s denial of benefits. The parties filed a consent to 28 proceed before a United States Magistrate Judge on August 10, 2012. 1 Plaintiff filed a motion for summary judgment on December 26, 2012. 2 Defendant filed a motion for summary judgment on January 18, 2013. 3 The Court has taken the motions under submission without oral 4 argument. See L.R. 7-15; Order, filed July 23, 2012. 5 6 BACKGROUND 7 8 Plaintiff asserts disability based primarily on asthma and back 9 problems (Administrative Record ( A.R. ) 36-48, 162-66, 173, 183-85). 10 While answering a questionnaire in 2009, and while testifying before 11 an Administrative Law Judge ( ALJ ) in 2011, Plaintiff claimed he 12 lacks the physical capacity to work because of acute, persistent 13 shortness of breath and severe back pain (A.R. 36-48, 173, 183-85). 14 Plaintiff s asthma reportedly produces constant wheezing, forces 15 Plaintiff to use a nebulizer machine four or five hours each day, 16 limits Plaintiff s walking to half a block, and prevents Plaintiff 17 from completing any tasks that require endurance or last longer than 18 five to ten minutes (A.R. 39-41, 173, 183-85). 19 problems reportedly warrant spinal fusion surgery, but Plaintiff 20 cannot undergo this surgery because of his asthma (A.R. 37-38). 21 Plaintiff s back pain assertedly prevents Plaintiff from tying his own 22 shoes, severely limits his ability to sit still, and causes him to 23 try not to lift nothing. 24 back (A.R. 44-48, 173, 183). Plaintiff s back I try not to put too much stress on my 25 26 The ALJ found Plaintiff has severe impairments, including 27 asthma, degenerative disc disease and trauma to the lumbo-sacral 28 spine with persistent pain (A.R. 12). 2 The ALJ also found that these 1 medically determinable impairments could reasonably be expected to 2 cause the symptoms alleged by Plaintiff (A.R. 14). 3 found not credible Plaintiff s testimony concerning the severity of 4 the symptoms alleged (A.R. 14). 5 relied on the objective [medical] evidence of record and the ALJ s 6 view that Plaintiff However, the ALJ In making this finding, the ALJ 7 8 has engaged in a somewhat normal level of daily activity and 9 interaction . . . taking care of his three-year-old son, 10 driving, cooking, and folding clothes. . . . The claimant s 11 admitted activities including taking care of his three-year- 12 old son, cooking, folding clothes and driving undermines the 13 claimant s alleged limitations. 14 tries not to lift anything, the claimant himself reported in 15 his exertion questionnaire that he lifts his 26-pound baby 16 on occasion . . . Despite allegations that he 17 18 (A.R. 14). 19 20 The ALJ found Plaintiff retains the residual functional capacity 21 to perform a limited range of light work, including the ability to 22 stand and walk two hours in an eight hour day and to lift and carry 23 ten pounds frequently and 20 pounds occasionally (A.R. 13). 24 Appeals Council denied review (A.R. 1-3). 25 /// 26 /// 27 /// 28 /// 3 The 1 STANDARD OF REVIEW 2 3 Under 42 U.S.C. section 405(g), this Court reviews the 4 Administration s decision to determine if: (1) the Administration s 5 findings are supported by substantial evidence; and (2) the 6 Administration used correct legal standards. 7 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 8 499 F.3d 1071, 1074 (9th Cir. 2007). 9 relevant evidence as a reasonable mind might accept as adequate to See Carmickle v. Substantial evidence is such 10 support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 11 (1971) (citation and quotations omitted); see Widmark v. Barnhart, 12 454 F.3d 1063, 1067 (9th Cir. 2006). 13 14 DISCUSSION 15 16 When an ALJ determines that a claimant s testimony regarding 17 subjective symptomatology is not credible, the ALJ must make 18 specific, cogent findings, supported in the record, to justify the 19 ALJ s determination. 20 1995); see Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990); 21 Varney v. Secretary, 846 F.2d 581, 584 (9th Cir. 1988).1 Lester v. Chater, 81 F.3d 821, 834 (9th Cir. Generalized, 22 23 24 25 26 27 28 1 In the absence of an ALJ s reliance on evidence of a claimant s malingering, most recent Ninth Circuit cases have applied the clear and convincing standard. See, e.g., Chaudhry v. Astrue, 688 F.3d 661, 672 n.10 (9th Cir. 2012); Molina v. Astrue, 674 F.3d 1104 (9th Cir. 2012); Taylor v. Commissioner of Social Security Admin., 659 F.3d 1228, 1234 (9th Cir. 2011); Valentine v. Commissioner, 574 F.3d 685, 693 (9th Cir. 2009); Ballard v. Apfel, 2000 WL 1899797, at *2 n.1 (C.D. Cal. Dec. 19, 2000) (collecting cases). In the present case, the ALJ s (continued...) 4 1 conclusory findings do not suffice. See Moisa v. Barnhart, 367 F.3d 2 882, 885 (9th Cir. 2004) (the ALJ s credibility findings must be 3 sufficiently specific to allow a reviewing court to conclude the ALJ 4 rejected the claimant s testimony on permissible grounds and did not 5 arbitrarily discredit the claimant s testimony ) (internal citations 6 and quotations omitted); 7 (9th Cir. 2001) (the ALJ must specifically identify the testimony 8 [the ALJ] finds not to be credible and must explain what evidence 9 undermines the testimony ); Smolen v. Chater, 80 F.3d 1273, 1284 (9th 10 Cir. 1996) ( The ALJ must state specifically which symptom testimony 11 is not credible and what facts in the record lead to that 12 conclusion. ); see also Social Security Ruling 96-7p. Holohan v. Massanari, 246 F.3d 1195, 1208 13 14 The ALJ s credibility determination in the present case is 15 legally insufficient. See id. The ALJ relied on two reasons for 16 rejecting Plaintiff s subjective symptomatology: 17 [medical] evidence of record and Plaintiff s daily activity (A.R. 18 14). 19 claimant s allegations regarding the severity of the symptoms and 20 limitations is diminished because those allegations are greater than 21 expected in light of the objective evidence of record (A.R. 14). 22 absence of fully corroborative medical evidence cannot form the sole 23 basis for rejecting the credibility of a claimant s subjective 24 complaints. 25 Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986); see also Burch v. the objective As to the first reason, the ALJ stated, the credibility of the See Varney v. Secretary, 846 F.2d at 584; Cotton v. 26 27 28 1 (...continued) findings are insufficient under either standard, so the distinction between the two standards (if any) is academic. 5 The 1 Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) ( Burch ) ( lack of 2 medical evidence can be a factor in rejecting credibility, but 3 cannot form the sole basis ). 4 the ALJ s credibility determination cannot stand. Thus, absent some other stated reason, 5 6 The only other stated reason, Plaintiff s daily activity, 7 cannot support the ALJ s credibility determination on the present 8 record. 9 and the alleged severity of the claimant s symptoms can support an Material inconsistency between a claimant s daily activity 10 adverse credibility determination. See generally, Fair v. Bowen, 885 11 F.2d 597, 603 (9th Cir. 1989). 12 regarding his limited daily activities are not materially inconsistent 13 with his allegedly disabling symptomatology. 14 260 F.3d 1044, 1049-50 (9th Cir. 2001) ( Vertigan ) ( the mere fact 15 that a plaintiff has carried on certain daily activities, such as 16 grocery shopping, driving a car, or limited walking for exercise, does 17 not in any way detract from her credibility as to her overall 18 disability. ); Gallant v. Heckler, 753 F.2d 1450, 1453-55 (9th Cir. 19 1984) ( Gallant ) (fact that claimant could cook for himself and 20 family members as well as wash dishes did not preclude a finding that 21 claimant was disabled due to constant back and leg pain).2 However, Plaintiff s admissions See Vertigan v. Halter, At first 22 23 24 25 26 27 28 2 In Burch, 400 F.3d at 680, the Ninth Circuit upheld an ALJ s rejection of a claimant s credibility in partial reliance on the claimant s daily activities of cooking, cleaning, shopping, interacting with others and managing her own finances and those of her nephew. In doing so, the Ninth Circuit did not purport to depart from the general rule that an ALJ may consider daily living activities in the credibility analysis only where a claimant engages in numerous daily activities involving skills that could be transferred to the workplace. Id. at 681. (continued...) 6 1 blush, Plaintiff s admissions regarding taking care of his three- 2 year-old son, driving, cooking and lifting a 26 pound baby may seem 3 to belie Plaintiff s allegations of disabling symptomatology. 4 However, the record reveals that the apparent inconsistency between 5 Plaintiff s activities and his claimed limitations is essentially 6 illusory. 7 old son in the sense in which the quoted phrase customarily is 8 understood. 9 his three-year-old son are rather limited. Plaintiff never admitted to taking care of his three-year- According to Plaintiff, his physical interactions with In fact, Plaintiff s 20- 10 year-old son reportedly came home from college to help with the three- 11 year-old because Plaintiff no longer was physically up to the task 12 (A.R. 42-52). 13 year-old, and does sometimes sit on the patio or at the park watching 14 the 20-year-old play with the three-year-old (A.R. 42-43). 15 no longer can play with the three-year-old, however, and it is the 20- 16 year-old, not Plaintiff, who takes the three-year-old out of the house 17 (except occasionally when Plaintiff drives the three-year-old around 18 the block in an attempt to induce a nap from the child) (A.R. 42, 51- 19 52). 20 lifted his (then) two-year-old, 26 pound son for a very s[h]ort time 21 is not significantly inconsistent with the desire Plaintiff Plaintiff does cook breakfast, does change the three- Plaintiff Plaintiff s admission that in August of 2009 he occasionally 22 23 24 25 26 27 28 2 (...continued) Undeniably, however, it is difficult to reconcile the result in Burch (and the result in Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175 (9th Cir. 2008)) from the results in cases like Vertigan and Gallant. Certainly, the relevance of a claimant carrying on daily activities should be evaluated on a case-bycase basis. Bloch on Social Security ยง 3.37 (Jan. 2005). In the present case, the record fails to show that Plaintiff s limited daily activities are inconsistent with his allegedly disabling symptomatology. 7 1 subsequently expressed at the 2011 administrative hearing to try to 2 avoid lifting anything. 3 does not constitute a legally sufficient reason to reject Plaintiff s 4 credibility. 5 552 (9th Cir. 2012) (claimant s admission that she watches her 3- 6 year-old grandson for a few hours during the day held insufficient to 7 support the ALJ s rejection of the claimant s credibility). In sum, Plaintiff s admitted daily activity See id.; see also Swims Under v. Astrue, 473 Fed. App x 8 9 Because the circumstances of this case suggest that further 10 administrative review could remedy the ALJ s error, remand is 11 appropriate. 12 Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003) ( Connett ) 13 (remand is an option where the ALJ fails to state sufficient reasons 14 for rejecting a claimant s excess symptom testimony); but see Orn v. 15 Astrue, 495 F.3d 625, 640 (9th Cir. 2007) (appearing, confusingly, to 16 cite Connett for the proposition that [w]hen an ALJ s reasons for 17 rejecting the claimant s testimony are legally insufficient and it is 18 clear from the record that the ALJ would be required to determine the 19 claimant disabled if he had credited the claimant s testimony, we 20 remand for a calculation of benefits ) (quotations omitted); see also 21 Vasquez v. Astrue, 572 F.3d 586, 600-01 (9th Cir. 2009) (agreeing that 22 a court need not credit as true improperly rejected claimant 23 testimony where there are outstanding issues that must be resolved 24 before a proper disability determination can be made); see generally 25 INS v. Ventura, 537 U.S. 12, 16 (2002) (upon reversal of an 26 administrative determination, the proper course is remand for 27 additional agency investigation or explanation, except in rare 28 circumstances). McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); see 8 1 CONCLUSION 2 3 For all of the foregoing reasons,3 Plaintiff s and Defendant s 4 motions for summary judgment are denied and this matter is remanded 5 for further administrative action consistent with this Opinion. 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 9 DATED: February 22, 2013. 10 11 ______________/S/________________ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3 27 28 The Court has not reached any other issue raised by Plaintiff except insofar as to determine that reversal with a directive for the payment of benefits would not be appropriate at this time. 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.
