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Daniel Armenta v. Michael J. Astrue

February 22, 2013

DANIEL ARMENTA,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.



The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge

MEMORANDUM OPINION AND ORDER OF REMAND

Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS HEREBY ORDERED that Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion.

PROCEEDINGS

Plaintiff filed a complaint on July 20, 2012, seeking review of the Commissioner's denial of benefits. The parties filed a consent to proceed before a United States Magistrate Judge on August 10, 2012.

Plaintiff filed a motion for summary judgment on December 26, 2012. Defendant filed a motion for summary judgment on January 18, 2013. The Court has taken the motions under submission without oral argument. See L.R. 7-15; "Order," filed July 23, 2012.

BACKGROUND

Plaintiff asserts disability based primarily on asthma and back problems (Administrative Record ("A.R.") 36-48, 162-66, 173, 183-85). While answering a questionnaire in 2009, and while testifying before an Administrative Law Judge ("ALJ") in 2011, Plaintiff claimed he lacks the physical capacity to work because of acute, persistent shortness of breath and severe back pain (A.R. 36-48, 173, 183-85). Plaintiff's asthma reportedly produces constant wheezing, forces Plaintiff to use a nebulizer machine four or five hours each day, limits Plaintiff's walking to half a block, and prevents Plaintiff from completing any tasks that require endurance or last longer than five to ten minutes (A.R. 39-41, 173, 183-85). Plaintiff's back problems reportedly warrant spinal fusion surgery, but Plaintiff cannot undergo this surgery because of his asthma (A.R. 37-38). Plaintiff's back pain assertedly prevents Plaintiff from tying his own shoes, severely limits his ability to sit still, and causes him to "try not to lift nothing. I try not to put too much stress on my back" (A.R. 44-48, 173, 183).

The ALJ found Plaintiff has severe impairments, including "asthma," "degenerative disc disease" and "trauma to the lumbo-sacral spine with persistent pain" (A.R. 12). The ALJ also found that these "medically determinable impairments" "could reasonably be expected to cause" the symptoms alleged by Plaintiff (A.R. 14). However, the ALJ found not credible Plaintiff's testimony concerning the severity of the symptoms alleged (A.R. 14). In making this finding, the ALJ relied on the "objective [medical] evidence of record" and the ALJ's view that Plaintiff

has engaged in a somewhat normal level of daily activity and interaction . . . taking care of his three-year-old son, driving, cooking, and folding clothes. . . . The claimant's admitted activities including taking care of his three-year-old son, cooking, folding clothes and driving undermines the claimant's alleged limitations. Despite allegations that he tries not to lift anything, the claimant himself reported in his exertion questionnaire that he lifts his 26-pound baby on occasion . . .

(A.R. 14).

The ALJ found Plaintiff retains the residual functional capacity to perform a limited range of light work, including the ability to stand and walk two hours in an eight hour day and to lift and carry ten pounds frequently and 20 pounds occasionally (A.R. 13). The Appeals Council denied review (A.R. 1-3).

STANDARD OF REVIEW

Under 42 U.S.C. section 405(g), this Court reviews the Administration's decision to determine if: (1) the Administration's findings are supported by substantial evidence; and (2) the Administration used correct legal standards. See Carmickle v. Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. ...


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