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Hernandez v. Astrue

January 6, 2009


The opinion of the court was delivered by: Patrick J. Walsh United States Magistrate Judge



Plaintiff Rafaela Hernandez brings this action seeking reversal of a decision by Defendant Social Security Administration ("the Agency"), denying her applications for disability insurance benefits and supplemental security income. Alternatively, she asks the Court to remand the case to the Agency for further proceedings. For the reasons set forth below, the Agency's decision is REVERSED and the action is REMANDED for further proceedings consistent with this opinion.


Plaintiff was born on September 26, 1961, and was 45 years old at the time of the administrative hearing. (Administrative Record ("AR") 73, 395.) She was born and raised in Mexico and has a fourth grade education. (AR 272, 395.) She has past relevant work experience as a candy catcher.*fn1 (AR 407.)

Plaintiff filed an application for disability insurance benefits on January 26, 2005, and an application for supplemental security income on February 1, 2005, alleging that she had been disabled since June 21, 2001, due to a workplace accident in which she hurt her arm. (AR 61, 73, 116, 374, 393, 396.) After her applications were initially denied, she requested and was granted an administrative hearing. (AR 46-49, 57-58.)

Plaintiff appeared with counsel at the hearing on October 23, 2006, and testified that she spends her time caring for her 13- and nine-year-old children "as much as [she] can." (AR 398.) She also testified that she cooks "if the food is not too difficult to prepare." (AR 398.) Plaintiff explained that she is able to clean the house, except for vacuuming and mopping, but she has to work slowly because of her arm and back pain. (AR 398-99.) She testified that she relies on others to take her children to school because she no longer drives. (AR 399, 401-03.) According to Plaintiff, she spends most of her time doing light housework and reading. (AR 404.) She acknowledged having received vocational training to be a travel agent, but explained that she was unable to pursue a career in the travel agency business because it involved extensive typing, which exacerbated her arm and shoulder pain. (AR 400.) She estimated that she could walk one block, sit for two hours at a time, and stand for three hours at a time. (AR 400, 405-06.)

After Plaintiff finished her testimony, the ALJ called a vocational expert to testify. The vocational expert pointed out that Plaintiff's prior work as a candy catcher was performed at the medium exertional level. (AR 408.) The ALJ then posed the following hypothetical question to him:

If we have a hypothetical individual this lady's age, education, past history, she's literate in English, not fluent, she could do light work, but no forceful push, pull in the left non-dominant extremity and -- let's see. Also no over the shoulder reaching with the left -- non-dominant. (AR 408.) The vocational expert opined that this hypothetical person could not perform Plaintiff's past relevant work, but could perform alternative work as a fast-food worker, cafeteria attendant, and housekeeper/cleaner. (AR 408-09.)

Plaintiff's counsel then questioned the vocational expert regarding a hypothetical individual as described by the ALJ, who also had marked limitations in the ability to maintain regular attendance and be functional, marked limitations in the ability to work in coordination with or in close proximity to other people without being a distraction to them, and marked limitations in the ability to ask a question or request assistance. (AR 410.) The vocational expert testified that such an individual would not be able to perform the jobs identified by the vocational expert or any other type of work. (AR 410-11.)

On December 6, 2006, the ALJ issued a decision denying Plaintiff's claim under the Agency's five-step sequential evaluation process. (AR 12-27.) Plaintiff appealed to the Appeals Council, which denied Plaintiff's request for review on July 16, 2007. (AR 5-9.) Plaintiff then commenced this action.


"Disability" under the applicable statute is defined as the inability to perform any substantial gainful activity because 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 twelve months." 42 U.S.C. § 1382c(a)(3)(A). The Court may overturn the ALJ's decision that a claimant is not disabled only if the decision is not supported by substantial evidence or is based on legal error. See Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989).

Substantial evidence "'means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401 (1971)(quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).) It is "more than a mere scintilla but less than a preponderance," Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1998), and "does not mean a large or considerable amount of evidence." Pierce v. Underwood, 487 U.S. 552, 565 (1988).


Plaintiff raises three claims of error. She argues that the ALJ failed to provide clear and convincing reasons for rejecting her allegations of disabling pain. (Joint Stip. at 13-19.) She also argues that the ALJ erred in rejecting the treating psychologist's opinion and, as a result, finding that Plaintiff's mental impairment was not severe. (Joint Stip. at 4-13.) Finally, she contends that the ALJ erred in failing to adequately consider the testimony of her husband. (Joint Stip. at 19-25.) For the following reasons, the Court finds that the ALJ erred in rejecting the treating psychologist's opinion and orders remand for further proceedings.

A. The ALJ's Consideration of Plaintiff's Credibility

Plaintiff argues that the ALJ failed to provide clear and convincing reasons for finding that she was not credible. (Joint Stip. at 13-16.) For the following reasons, the Court disagrees and affirms the ALJ's finding that Plaintiff was not credible.

ALJs evaluate a claimant's testimony under a two-step analysis. First, the claimant must "produce medical evidence of an underlying impairment which is reasonably likely to be the cause" the symptoms alleged. Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir. 1991). Second, once the claimant produces this evidence, the medical findings need not support the severity of the symptoms, and the ALJ may not discredit the claimant's allegations solely on the ground that the allegations are unsupported by objective medical evidence. Id. at 346-47. In the absence of affirmative evidence that a claimant is malingering, the ALJ's reasons for rejecting the claimant's testimony must be specific, clear and convincing. See Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) ("[T]he ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear, and convincing reasons for doing so.'" (quoting Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996). If the ALJ rejects the claimant's allegations as not credible, she "must specifically make findings which support this conclusion." Bunnell, 947 F.2d at 345. In doing so, the ALJ must identify what testimony is not credible and what facts in the record lead to that conclusion. Smolen, 80 F.3d at 1284; see also Lester, 81 F.3d at 834 ("[g]eneral findings are insufficient; rather, the ALJ must identify what testimony is not ...

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