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Rocha-Cazares v. Astrue

June 18, 2010


The opinion of the court was delivered by: Suzanne H. Segal United States Magistrate Judge



Juan C. Rocha-Cazares ("Plaintiff") brings this action seeking to overturn the decision of the Commissioner of the Social Security Administration (hereinafter the "Commissioner" or the "Agency") denying his application for Disability Insurance Benefits ("DIB"). The parties consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction of the undersigned United States Magistrate Judge. For the reasons stated below, the decision of the Agency is REVERSED and REMANDED for further proceedings.


On July 28, 2006, Plaintiff filed an application for DIB under Title II and Part A of Title XVIII of the Social Security Act. (Administrative Record ("AR") 83, 100). Plaintiff alleged a disability onset date of May 6, 2001, on the bases of fibromyalgia, back, neck, and other recurring body pain. (AR 100). The Agency initially denied his application on January 1, 2007, and upheld the denial on April 2, 2007 (AR 47, 54). Plaintiff then requested a hearing, which was held before Administrative Law Judge ("ALJ") David J. Agatstein on October 16, 2008. (AR 26-39). Plaintiff appeared with counsel and testified. (AR 29-36). A vocational expert testified at the hearing. (AR 36-38).

On January 2, 2009, ALJ Agatstein issued a decision denying benefits. (AR 18). Plaintiff sought review of this decision before the Appeals Council. (AR 11). On July 25, 2009, the Appeals Council denied review. (AR 1). Plaintiff filed instant action on March 18, 2010.


On January 10, 2003, Plaintiff was treated at the North Oakland Medical Center Emergency Center in Pontiac, Michigan for back and chest pain sustained in a fall ten days earlier while working at a ski lift in Alpine Valley, Michigan. (AR 184). On April 21, 2003, Dr. Nadine Jennings treated Plaintiff in Waterford, Michigan. (AR 172). Dr. Jennings diagnosed Plaintiff with myofascial pain and mechanical lower back pain. (AR 172-173). In September and November of 2003, Dr. Joseph Salama examined Plaintiff in Southfield, Michigan in response to a disability claim. (AR 199, 202). Dr. Salama concluded that Plaintiff could fulfill his normal employment duties. (AR 200, 209).

In December of 2005, Plaintiff injured his ankle in a fork lift accident. (AR 32-33). On February 23, 2006, Dr. Salvador Garfias treated Plaintiff at Clinica Monsenor Oscar A. Romero in Los Angeles, California. (AR 222). Over the next two years, Dr. Garfias treated Plaintiff on a regular basis, sometimes three or four times a month. (AR 216-230, 259-262, 291-99). At each visit, Plaintiff reported pain throughout his body. (AR 216-30, 259-262, 291-99).

Dr. Garfias wrote "suspect fibromyalgia" during Plaintiff's first visit. (AR 222). Dr. Garfias' treatment record indicated that he was "highly suspicious" that Plaintiff had fibromyalgia throughout the time Dr. Garfias treated Plaintiff. (AR 218, 220-222, 259-262, 292, 296). Dr. Garfias performed the "trigger points" test - a diagnostic tool that tests for pain in at least eleven of eighteen place on the body to confirm a fibromyalgia diagnosis - on March 15, 2008. (AR 292). On September 29, 2008, Dr. Garfias filled out a physical Residual Function Capacity ("RFC") Questionnaire. (AR 336-339). In the RFC, Dr. Garfias*fn1 diagnosed Plaintiff with fibromyalgia, based on muscle pain in several parts of Plaintiff's body. (AR 336). Dr. Garfias concluded that Plaintiff could not sit for more than fifteen minutes, stand for more than five minutes, required a break every fifteen minutes and could only occasionally lift less than ten pounds. (AR 337-338).

The City Help Mobile Medical Clinic treated Plaintiff in Los Angeles from April through June of 2006. (AR 155-166). Plaintiff reported pain in his back (eight on a scale of one to ten), thorax (seven out of ten), and ankles (ten out of ten after walking for ten minutes). (AR 163). On April 9, 2007, Dr. Thomas Beardmore and Dr. Karen Shainsky of Rancho Los Amigos Rehabilitation Center in Downey, California examined Plaintiff, primarily for arthritis. (AR 300-01).

In sum, the Plaintiff consistently experienced moderate to severe pain from January 1, 2003 (when he slipped and fell while working at a ski lift in Michigan) until the end of the treatment record. Dr. Garfias, Plaintiff's primary treating physician, saw Plaintiff regularly over a two year period and diagnosed Plaintiff with fibromyalgia. No other treating source considered a fibromyalgia diagnosis, nor performed the "trigger points" test. Dr. Nadine Jennings provided the only other treating physician diagnosis in April of 2003, prior to Plaintiff's forklift accident. Dr. Jennings concluded that patient suffered from myofascial pain and lower back pain.

On December 11, 2006, Dr. Ibrahim Yashruti of the Millennium Multi-Specialty Medical Group examined Plaintiff at the request of the Department of Social Services, in response to Plaintiff's DIB filing. (AR 231). Dr. Yashruti consulted Dr. Jennings' 2003 records, but made no mention of Dr. Garfias' examination or conclusions. (AR 231-237). Dr. Yashruti concluded that Plaintiff could lift and carry twenty five pounds occasionally, ten pounds frequently, could stand and walk on level ground for six hours and sit for six hours in a work day. (AR 236-237).


To qualify for disability benefits, a claimant must demonstrate a medically determinable physical or mental impairment that prevents him from engaging in substantial gainful activity and that is expected to*fn2 result in death or to last for a continuous period of at least twelve months. Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing 42 U.S.C. § 423(d)(1)(A)). The impairment must render the claimant incapable of performing the work he previously performed and incapable of performing any other substantial gainful employment that exists in the national economy. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)).

To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. § 416.920. The steps are:

(1) Is the claimant presently engaged in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two.

(2) Is the claimant's impairment severe? If not, the claimant is found not disabled. If ...

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