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Juan Antonio Moreno v. Michael J. Astrue

February 13, 2013


The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge


Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("Act"). For the reasons discussed below, the court will grant plaintiff's motion for summary judgment, deny the Commissioner's cross-motion for summary judgment and remand for further proceedings under sentence four of 42 U.S.C. § 405(g).


Plaintiff, who was born in 1966, applied for DIB on August 14, 2008, alleging disability beginning July 28, 2007. Administrative Transcript ("AT") 20; Dkt. 15-1 at 4. Plaintiff alleges that he is unable to work on account of a back injury resulting in nerve damage; anxiety; depression; memory problems; headaches; chronic pain in his back, neck and the left side of his body; numbness in the left side of his body; and pain in his left wrist. Dkt. 15-1 at 4; AT 131-134, 135, 140. In a decision dated April 23, 2010, an Administrative Law Judge ("ALJ") determined that plaintiff was not disabled.*fn1 Tr. 20-29. The ALJ made the following findings (citations to 20 C.F.R. omitted):

1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2012.

2. The claimant has not engaged in substantial gainful activity since July 28, 2007

3. The claimant has the following severe impairments: degenerative disc disease of the lumbar spine; left carpal tunnel syndrome; and pain disorder.

4. The claimant does not have an impairment or combinations of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.

5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to lift 10 pounds occasionally and frequently; stand/walk 4 hour/8 hour workday; sit 6 hours/8 hour workday; occasionally bend, stoop, twist, squat, kneel, crawl and climb stairs; never climb ladders, ropes or scaffolding; never work around heights or hazardous moving machinery; occasionally handle/finger with left (non-dominant) upper extremity; and, constantly handle/finger with right (dominant) upper extremity.

6. The claimant is unable to perform any past relevant work. 7. The claimant was born on February 23, 1966 and was 41 years old, which is defined as a "younger individual 45-49," on the alleged disability onset date.

8. The claimant has a "marginal" education and is able to communicate in English.

9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills.

10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform.

11. The claimant has not been under a disability, as defined in the Social Security Act, from July 28, 2007, through the date of this decision.

AT 22-29.


Plaintiff argues that the ALJ committed the following errors in finding plaintiff not disabled: (1) despite evidence to the contrary, the ALJ did not find that plaintiff suffers from a minimally severe mental impairment; (2) the ALJ improperly rejected the opinion of Dr. Adegoke Adeyomo; (3) the ALJ failed to establish that there is other work in the national economy that plaintiff could perform; and (4) the ALJ failed to properly consider the lay evidence of record. Dkt. 15-1. The court addresses each of these issues in turn.


The court reviews the Commissioner's decision to determine whether (1) it is based on proper legal standards pursuant to 42 U.S.C. ยง 405(g), and (2) substantial evidence in the record as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir.1999). Substantial evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007), quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. ...

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