The opinion of the court was delivered by: Elizabeth D. Laporte, United States Magistrate Judge
ORDER ON MOTION FOR SUMMARY JUDGMENT OR REMAND
On January 27, 1999, Plaintiff Tammy L. Kokal, appearing pro se, filed
a claim for social security disability benefits under Title II of the
Social Security Act, alleging that she has been disabled by an ankle
injury and resulting complications as of June 8, 1997. Plaintiff appeals
from the denial of her claim by the Social Security Administration
("SSA") on April 6, 1998, and again upon reconsideration on July 29,
The principal issue on appeal is whether Administrative Law Judge
Michael P. Bazell ("ALJ") erred by failing to consider whether Plaintiff
was disabled due to the combination of her obesity and other
impairments, either under the obesity listing in place at the time of her
administrative hearing, Listing 9.09,*fn1 or under the regulations on
obesity that replaced that listing while her case was pending before the
Appeals Council. Plaintiff also argues that substantial evidence does not
ALJ's finding regarding her subjective statements of pain.
The Commissioner of Social Security ("Defendant") responds that
Plaintiff failed to establish an inability to perform her past relevant
work, and submitted immaterial extra-record evidence. Only when this
Court requested further briefing did Defendant address the issue of
On June 7, 1999, Plaintiff appeared without counsel at a hearing before
the ALJ. The administrative record before the ALJ reveals the following
medical and work history. Plaintiff was born on June 2, 1960 and holds a
GED, which is equivalent to a high school education. During 1986-87,
Plaintiff worked as a spot welder. (Rec. 42).*fn2 During 1987-88,
Plaintiff worked as a cashier and a payroll clerk. (Rec. 41). After
earning her GED in 1994, Plaintiff worked as a pharmacy technician until
her accident in June, 1997. (Recs. 24-25). After filing for disability
benefits, Plaintiff worked from February 8, 1999 to March 11, 1999 as a
legal service courier, but quit because her supervisor would not permit
her to wear tennis shoes. (Recs.30-32).
Plaintiff first visited Kaiser Permanente Medical Center ("Kaiser") on
June 8, 1997, following her injury. (Rec. 133). Plaintiff was diagnosed
with a sprained right ankle. Id. A computed tomographic ("CT") scan of
her ankle did not reveal any significant abnormality. (Rec. 145).
Plaintiff again visited Kaiser in July and August 1997. Dr. David
Cummins diagnosed Plaintiff as having a "delayed recovery" from the
sprain due to a "soft tissue injury." (Rec. 124, 125). A second CT scan of
her ankle again did not reveal any significant abnormality. (Rec. 144).
Later, on December 10, 1997, Dr. Peters, also from Kaiser, examined
Plaintiff and noted that she was morbidly obese, but moved about quite
well. (Rec. 115). In fact, Plaintiff's medical records reveal that nearly
every physician who treated her noted on record that she was obese (Rec.
126, 162) or morbidly obese. (Recs. 102, 115, 122, 131, 139, 149).
Soon after, Dr. Cummins diagnosed Plaintiff with "chronic posttraumatic
ankle dysfunction" and recommended that Plaintiff find a job in which she
could work part-time and not be on her feet during the work day. (Recs.
111, 160). In January, 1998, Kaiser neurologist Dr. J. Philip Seab noted
that Plaintiff complained of low back pain radiating into her legs.
(Rec. 108). He prescribed Trazadene to lessen her pain and sleep problems
and recommended pool exercises and weight loss. (Recs. 104, 109).
Plaintiff also was given an MRI scan of her spine, which revealed early
lumbosacral degenerative disc disease. (Rec. 106).
Plaintiff then visited the Kaiser Spine Clinic, where Dr. Leo Chi
diagnosed Plaintiff with chronic mechanical low back pain with symptoms
of radiculitis. (Rec. 101). Dr. Chi prescribed weight loss with diet,
medications, ice and Trazadone on a regular basis. (Rec. 102). Shortly
after, Dr. Chi opined that Plaintiff could begin retraining for another
job; that she could lift ten pounds occasionally; that she could
occasionally bend, squat, kneel or climb; and that she could stand,
walk, sit or drive for two hours at a time for a total of eight hours
each day. (Rec. 99).
At the request of the Department of Rehabilitation, Psychologist Alex
Leung, Ph.D., evaluated Plaintiff on May 21, 1998, seeking to discover
suitable employment for Plaintiff by assessing her "level of cognitive
ability, her academic aptitude and her vocational interest profile."
(Rec. 179-84). Based on Plaintiff's test scores and Vocational Interest
Profile, Dr. Leung concluded that Plaintiff could be expected to perform
at a level which is somewhat lower than performance of her peers of the
same age and could perform several jobs, including an orderly, nurse's
aide, morgue attendant, physical therapy aide, service station attendant
and parking lot attendant. (Recs. 182, 184).
In June, 1998, orthopedic surgeon Charles Miller, M.D., examined
Plaintiff, noting that she primarily complained of pain in her lower
back, right ankle and foot, left knee, and neck and upper back (Rec.
162-67). Dr. Miller diagnosed Plaintiff with pain but full range of
motion in her left knee, limited range of motion in her ankle joints,
chronic right ankle and foot sprains, left hip strain, cervical strain
and lumbar strain. Dr. Miller concluded that although Plaintiff's walking
ability was restricted, she could lift and carry up to fifteen pounds,
occasionally push and pull twenty-five pounds and stand and walk
noncontinuously for six hours each day, provided she was given frequent
rest breaks. (Rec. 165). The following month, state agency physician
Harmon Michelson, M.D., opined that, based on Plaintiff's medical
examinations and diagnoses, she retained the ability to work six hours a
day, with only occasional climbing, stooping, kneeling, crouching and
crawling. (Rec. 168-75).
On April 13, 1999, during Plaintiff's administrative hearing,
vocational expert witness ("VE") Richard Hincks testified that, if an
individual with Plaintiff's vocational profile were limited to sedentary
work, that individual could perform Plaintiff's past relevant work as a
payroll clerk. (Rec. 44). The VE also identified other work that Plaintiff
could perform, which existed in significant numbers in the national
economy. (Rec. 45-46).
Plaintiff testified during the hearing that due to the side effects,
she does not take medication for the pain. (Rec. 33). She stated that she
seldom cooks and primarily sits or lies down all day except for picking
her children up from school and traveling to and from church twice
weekly. (Rec. 34).
Plaintiff also testified that Dr. Peters recommended that she undergo a
stomach stapling procedure, which would lessen the amount of food she can
eat in a single sitting, so she could lose weight in order to decrease
the amount of pressure on her back and ankles. In Plaintiff's motion for
summary judgment she explained that due to her numerous health problems
and the risks of surgery she decided against having the surgery. See
Pl.'s Mot. for Summ. J.
On June 7, 1999, the ALJ issued a decision finding that Plaintiff was
not disabled. On June 15, 2000, the Appeals Council declined Plaintiff's
request for review. The ALJ's decision therefore became the final
decision of the Commissioner of Social Security. Plaintiff commenced the
present action on August 17, 2000, pursuant to 42 U.S.C. § 405(g). On
April 5, 2001, this Court issued an Order to Show Cause, requiring
Plaintiff to either file a motion for summary judgment or appear at a
hearing to explain why no such motion had been filed pursuant to Civil
Local Rule 16-5. Plaintiff filed a Motion for Summary Judgment on April
and Defendant filed a Cross-Motion for Summary Judgment on
May 15, 2001. Plaintiff did not file a reply. On July 27, 2001, this
Court requested specified further briefing. Defendant submitted its
supplemental briefing on August 8, 2001. Plaintiff did not file a
supplemental brief. The matter is now deemed submitted. See Civil L.R.
"The findings of the Commissioner of Social Security as to any fact, if
supported by substantial evidence, shall be conclusive." See
42 U.S.C. § 405(g). The Commissioner's findings may be set aside only
if they are based on legal error or are not supported by substantial
evidence. See Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998)
(citing Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996)).
"Substantial evidence is more than a scintilla, but less than a
preponderance. [It is] relevant evidence which a reasonable person might
accept as adequate to support a conclusion." Id. (quoting Jamerson v.
Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)). To determine whether
substantial evidence supports the Commissioner's findings, the court
"must review the administrative record as a whole, weighing both the
evidence that supports and the evidence that detracts from the
Commissioner's conclusion." Id. (quoting Magallenes v. Bowen, 881 F.2d 747,
750 (9th Cir. 1989)). If the evidence can reasonably support either
affirming or reversing the Secretary's conclusion, the court may not
substitute its judgment for that of the Secretary. See id. (citing Flaten
v. Secretary of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir.
A. Definition and Determination of ...