United States District Court, S.D. California
REPORT AND RECOMMENDATION ON CROSS MOTIONS FOR
SUMMARY JUDGMENT [ECF NOS. 20, 21]
Mitchell D. Dembin United States Magistrate Judge.
Miguel Asmar (“Plaintiff”) filed this action
pursuant to 42 U.S.C. § 405(g) for judicial review of
the decision of the Commissioner of the Social Security
Administration (“Commissioner”) denying
Plaintiff's applications for a period of disability and
disability insurance benefits under Title II and supplement
security income payments under Title XVI of the Social
Security Act. Plaintiff moves the Court for summary judgment
reversing the Commissioner and ordering an award of benefits,
or in the alternative, to remand the case for further
administrative proceedings. (ECF No. 19). Defendant moves for
summary judgment affirming the denial of benefits. (ECF No.
reasons expressed herein, the Court recommends that
Plaintiff's motion be DENIED and Defendant's motion
alleges that he became disabled on December 31, 2008, due to
several medical and mental conditions, including pain in his
right foot and knee, both ankles, right elbow, and jaw;
numbness in both hands and his back; pain and arthritis in
his neck; wrist damage; loss of concentration; anxiety; and
depression. (A.R. at 11, 168).Plaintiff's date of birth,
June 27, 1974, categorizes him as a younger individual at the
time of filing. 20 C.F.R. §§ 404.1563, 416.963;
February 29, 2012, Plaintiff filed an application for
supplemental security income under Title XVI of the Social
Security Act (“Act”), and on March 14, 2012,
Plaintiff filed an application for disability insurance
benefits under Title II of the Act. (A.R. 11). Plaintiff has
filed four prior applications. (A.R. 16). The third
application was filed on August 20, 2009, and denied by
Administrative Law Judge (“ALJ”) J. Carletti on
December 27, 2010. (Id., A.R. 102). The
Appeal's Council denied review of the ALJ's decision
on January 4, 2011. (A.R. 16). As to Plaintiff's 2012
applications, his claims were denied initially on October 19,
2012, and denied upon reconsideration on April 17, 2013.
(A.R. 11). Plaintiff requested a hearing before an ALJ, and a
hearing was held on June 5, 2014, before ALJ Eric V. Benham.
(A.R. 29-48). Plaintiff appeared and was represented by
counsel. (A.R. 29). Plaintiff and Vocational Expert
(“VE”) Mark Remas testified at the hearing. (A.R.
September 18, 2014, the ALJ issued a written decision finding
Plaintiff not disabled. (A.R. 11-21). Plaintiff appealed, and
the Appeals Council denied Plaintiff's request to review
the ALJ's decision. (A.R. 1-3). Consequently, the
ALJ's decision became the final decision of the
Commissioner. (A.R. 1).
3, 2016, Plaintiff filed a Complaint with this Court seeking
judicial review of the Commissioner's decision. (ECF No.
1). On August 4, 2016, Defendant answered and lodged the
administrative record with the Court. (ECF Nos. 10, 11). On
October 18, 2016, Plaintiff moved for summary judgment. (ECF
No. 20). On November 18, 2016, the Commissioner cross-moved
for summary judgment and responded in opposition to
Plaintiff's motion. (ECF Nos. 20, 21).
supplemental security income program provides benefits to
disabled persons without substantial resources and little
income. 42 U.S.C. § 1382. To qualify, a claimant must
establish an inability to engage in “substantial
gainful activity” because of a “medically
determinable physical or mental impairment” that
“has lasted or can be expected to last for a continuous
period of not less than 12 months.” 42 U.S.C. §
1382c(a)(3)(A). The disabling impairment must be so severe
that, considering age, education and work experience, the
claimant cannot engage in any kind of substantial gainful
work that exists in the national economy. 42 U.S.C. §
Commissioner makes this assessment through a process of up to
five steps. First, the claimant must not be engaged in
substantial, gainful activity. 20 C.F.R. § 416.920(b).
Second, the claimant must have a “severe”
impairment. 20 C.F.R. § 416.920(c). Third, the medical
evidence of the claimant's impairment is compared to a
list of impairments that are presumed severe enough to
preclude work. 20 C.F.R. § 416.920(d). If the
claimant's impairment meets or is equivalent to the
requirements for one of the listed impairments, benefits are
awarded. Id. If the claimant's impairment does
not meet or is not equivalent to the requirements of a listed
impairment, the analysis continues to a fourth and possibly
fifth step and considers the claimant's residual
functional capacity. 20 C.F.R. § 416.920(e). At the
fourth step, the claimant's relevant work history is
considered along with the claimant's residual functional
capacity. Id. If the claimant can perform the
claimant's past relevant work, benefits are denied. 20
C.F.R. § 416.920(f). At the fifth step, if the claimant
is found not able to perform the claimant's past relevant
work, the issue is whether claimant can perform any other
work that exists in the national economy, considering the
claimant's age, education, work experience, and residual
functional capacity. 20 C.F.R. § 416.920(g). If the
claimant cannot do other work that exists in the national
economy, benefits are awarded. Id.
1383(c)(3) of the Social Security Act, through Section 405(g)
of the Act, allows unsuccessful applicants to seek judicial
review of a final agency decision of the Commissioner. 42
U.S.C. §§ 1383(c)(3), 405(g). The scope of judicial
review is limited, and the Commissioner's denial of
benefits “will be disturbed only if it is not supported
by substantial evidence or is based on legal error.”
Brawner v. Secretary of Health & Human Services,
839 F.2d 432, 433 (9th Cir. 1988) (quoting Green v.
Heckler, 803 F.2d 528, 529 (9th Cir. 1986)).
evidence means “more than a mere scintilla” but
less than a preponderance. Sandgathe v. Chater, 108
F.3d 978, 980 (9th Cir. 1997). “[I]t is such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.” Id. (quoting
Andrews v. Shalala 53 F.3d 1035, 1039 (9th Cir.
1995)). The court must consider the record as a whole,
weighing both the evidence that supports and detracts from
the Commissioner's conclusions. Desrosiers v.
Secretary of Health & Human Services, 846 F.2d 573,
576 (9th Cir. 1988). If the evidence supports more than one
rational interpretation, the court must uphold the ALJ's
decision. Allen v. Heckler, 749 F.2d 577, 579 (9th
Cir. 1984). When the evidence is inconclusive,
“questions of credibility and resolution of conflicts
in the testimony are functions solely of the
Secretary.” Sample v. Schweiker, 694 F.2d 639,
642 (9th Cir. 1982).
has a special duty in social security cases to fully and
fairly develop the record in order to make an informed
decision on a claimant's entitlement to disability
benefits. DeLorme v. Sullivan, 924 F.2d 841, 849
(9th Cir. 1991). Because disability hearings are not
adversarial in nature, the ALJ must “inform himself
about the facts relevant to his decision, ” even if the
claimant is represented by counsel. Id. (quoting
Heckler v. Campbell, 461 U.S. 458, 471 n.1 (1983)).
a reviewing court finds that substantial evidence supports
the ALJ's conclusions, the court must set aside the
decision if the ALJ failed to apply the proper legal
standards in weighing the evidence and reaching his or her
decision. Benitez v. Califano, 573 F.2d 653, 655
(9th Cir. 1978). Section 405(g) permits a court to enter a
judgment affirming, modifying, or reversing the
Commissioner's decision. 42 U.S.C. § 405(g). The
reviewing court may also remand the matter to the Social
Security Administration for further proceedings. Id.
The ALJ's Decision
concluded Plaintiff was not disabled, as defined in the
Social Security Act, from December 31, 2008, through the date
of the ALJ's decision, September 18, 2014. (A.R. 20-21).
The ALJ found that Plaintiff did not make a showing of
changed circumstances sufficient to overcome the presumption
of non-disability from the prior ALJ decision in December
2010. (A.R. 16).
found that Plaintiff has the following severe impairments:
history of testicular cancer status post right orchiectomy
without recurrence, cervical spine degenerative disc disease,
right hand osteoarthritis, right wrist pain and right knee
degenerative changes. (A.R. 13). The ALJ determined that
Plaintiff's depression is not severe. (A.R. 13-14).
Specifically, the ALJ found that Plaintiff has mild
restrictions in daily living activities, social functioning
and concentration, persistence or pace. (A.R. 14). The ALJ
also determined that Plaintiff experienced no episodes of
decompensation of extended duration. (Id.). The ALJ
noted that Plaintiff was able to drive a car, attend school,
ride a motorcycle, ride a bike, care for his daughter and
engage in outdoor activities with her and was a jeweler for a
further found that Plaintiff did not have an impairment or
combination thereof that meets or is medically equivalent to
the severity of one of the listed impairments in 20 C.F.R.
Part 404, Subpart P, Appendix 1 (20 C.F.R. §§
404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and
416.926) because “[n]o physician has credibly opined
that the [Plaintiff's] conditions meet or equal any
listing, and the state agency program physicians opined that
they do not.” (A.R. 15).
the ALJ found that Plaintiff has the residual functional
capacity (“RFC”) to “perform the full range
of heavy work as defined in 20 CFR [§§] 404.1567(d)
and 416.967(d)” with no mental limitations. (A.R. 15,
18). In making this finding, the ALJ noted that
Plaintiff's statements regarding the intensity,
persistence, and limiting effects of his symptoms “are
not entirely credible” and the objective medical
evidence does not support Plaintiff's alleged symptoms.
(A.R. 16). Based on the VE's testimony, the ALJ found
that Plaintiff is capable of performing past relevant work as
a newspaper deliverer and auto service supervisor because his
RFC permits him to perform these jobs as they are generally
performed. (A.R. 20). The ALJ specifically noted the
following to be of particular relevance:
alleged that since December 31, 2008, pain in his neck, arm,
hand, wrist and knee limits his abilities to perform postural
and manipulative movements such as sitting, standing, walking
and lifting and carrying. (A.R. 16). He alleged that his
disability is due to mental and physical injuries.
(Id.). The ALJ, however, found that Plaintiff's
allegations concerning the intensity, persistence and
limiting effects of his symptoms were “not entirely
credible”. (Id.). Specifically, the ALJ found
that Plaintiff's allegations of disabling mental and
physical limitations are unsupported by objective medical
was diagnosed with and treated for testicular cancer in 2006,
completed chemotherapy by January 2, 2007 and was able to
resume full-time work delivering newspapers and performing
manual labor. (A.R. 16-17). The ALJ noted that Plaintiff does
not allege current impairment due to cancer and no evidence
of cancer recurrence exists. (A.R. 17).
alleged three motor vehicle accidents in 2008 and another in
2011. (Id.). The ALJ incorporated by reference the
prior ALJ's 2010 decision and stated that Plaintiff's
“exaggeration of the severity of these accidents and
the lack of objective evidence of injury impair the
[Plaintiff's] credibility.” (Id.).
Particularly, the ALJ noted that after Plaintiff's
December 20, 2008 motorcycle accident, he complained of
bilateral knee, wrist and left thumb pain, but radiographs of
Plaintiff's pelvis and bilateral knees were negative.
(Id.). The ALJ also acknowledged that Plaintiff was
discharged from the emergency department with no
prescriptions and was walking appropriately. (Id.).
respect to Plaintiff's October 4, 2011 motorcycle
accident, the ALJ noted that on October 10, 2011, Plaintiff
was not taking any medications, and that in a November 2011
neurologic exam, Plaintiff “walked with a limp but was
nonetheless able to toe, heel and tandem walk” and
showed no evidence of focal weakness or atrophy of the upper
or lower extremities, except for his right thumb muscles.
(A.R. 17). On May 21, 2012, Plaintiff complained of foot
pain, but his radiographs were normal, except for hallux
valgus. (Id.). ...