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United States District Court, Northern District of California

January 9, 2003


The opinion of the court was delivered by: Maxine M. Chesney, United States District Judge

Plaintiff Roseanne Carr ("Carr") brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of a final decision of the Commissioner of Social Security Administration ("Commissioner") denying her application for Supplemental Security Income ("SSI") benefits under Titles II and XVI of the Social Securities Act, § 401 et. seq. and § 1381 et. seq. The matter is before the Court on Carr's motion for summary judgment and the Commissioner's cross-motion for summary judgment. Pursuant to Civil Local Rule 16-5, the motions have been submitted without oral argument. Having considered the papers filed in support of and in opposition to the motions, the Court rules as follows.


Carr was born on August 10, 1957. (Transcript of Record ("Tr") at 484.) On October 28, 1987, Carr injured her back while working as a certified nursing assistant and reinjured it in October 1989. (Tr. at 218, 225.) She filed an application for SSI benefits on June 29, 1992. (Tr. at 15.) Carr was awarded benefits effective December 5, 1992, based on a substance addiction disorder. (Tr. at 15.) Her benefits were terminated on January 1, 1997, pursuant to Public Law 104-121.*fn1 (Tr. at 15.)

Carr filed an appeal, alleging that, independent of her alcoholism, she was unable to work because of her back injury. (Tr. at 15.) Carr's appeal was denied. She thereafter filed a request for an administrative hearing, which was held on February 11 1998. (Tr. at 15.) At the hearing, the Administrative Law Judge ("ALJ") heard testimony from Carr and her husband. Following the hearing, the ALJ issued a written decision finding Carr was not disabled. (Tr. at 19.) In the decision, the ALJ found that Carr has degenerative disc disease of the lumbar spine, but that she does not have any impairment that significantly limits her ability to perform basic work-related activities. (Tr. at 19.) The ALJ concluded that Carr did not have a severe impairment under 20 C.F.R. § 404.1521 and 416.921, and therefore was not disabled as defined in the Social Security Act. (Tr. at 19-20.) On May 12, 2000, the Appeals Council denied Carr's request for review of the denial of her application for benefits. (Tr. at 4.) On July 13, 2000, Carr commenced this action for judicial review pursuant to 42 U.S.C. § 405(g).*fn2


A Commissioner's decision that benefits are not warranted will be "disturbed only if it is not supported by substantial evidence or if it is based on legal error." See Brawner v. Secretary of Health and Human Servs., 839 F.2d 432, 433 (9th Cir. 1987) (quoting Green v. Heckler, 803 F.2d 528, 529 (9th Cir. 1986)); see also 42 U.S.C. § 405(g). "Substantial evidence, considering the entire record, is relevant evidence which a reasonable person might accept as adequate to support a conclusion." Matthews v. Shalala, 10 F.3d 678, 679 (9th Cir. 1993). In its review, the Court must consider the record as a whole, including evidence that supports and detracts from the decision. See Desrosiers v. Secretary of Health and Human Servs., 846 F.2d 573, 576 (9th Cir. 1988).


In her motion for summary judgment or, in the alternative, for remand, Carr contends that the ALJ erred as a matter of law by failing to rely on her treating physicians' findings that she was unable to return to work, failing to develop the record by not contacting Carr's most recent treating physician for an opinion as to her work status, and ignoring the findings of a prior ALJ who determined Carr was unable to return to work. In addition, Carr claims that substantial evidence did not support the ALJ's decision to discredit her subjective pain reports. (Plaintiff's Motion for Summary Judgment ("Pl.'s Mot.") at 2-3.)

Under the Social Security Act, determination of disability involves a five-step evaluation process. See 20 C.F.R. § 404.1520, 416.920.*fn3 Here, the relevant stage of analysis is step two, which requires that the claimant have a "severe impairment." A "severe impairment" is defined as "any impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities . . ." Id. The impairment must last or be expected to last at least twelve months. 20 C.F.R. § 404.1509.

A. Medical Evidence

At the outset, Carr argues that "treating physicians" determined that she could not return to her previous work and, therefore, the ALJ erred in finding that her injury was not severe. (Pl's Mot. at 2:22-24.) Under the treating physician rule, the ALJ must give greater weight to the opinions of treating physicians because they "are employed to cure and thus have a greater opportunity to know and observe the patient as an individual." See Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). "Therefore, an ALJ may not reject treating physicians' opinions unless he makes findings setting forth specific and legitimate reasons for doing so that are based on substantial evidence in the record." Id. (internal quotation and citations omitted).

Here, Carr has failed to establish that the ALJ's determination that Carr is not disabled conflicts with the findings of a treating physician. The record reflects only one treating physician, Thomas Phillips, M.D. ("Dr. Phillips"). Dr. Phillips offered no opinion as to Carr's ability to perform her past relevant work. The two doctors who, in 1990, found plaintiff to have a significant impairment, Creed Wood, M.D. ("Dr. Wood") and Richard Baker, M.D. ("Dr. Baker"), each examined Carr at the request of the Worker's Compensation carrier. (Tr. at 258, 271.) Consequently, their respective opinions carry no more weight than those of other non-treating, examining physicians and the ALJ did not violate the treating physician rule.

B. Failure to Develop the Record

Carr next argues that the ALJ erred in failing to develop the record regarding plaintiff's work capacity. In particular, plaintiff argues that the ALJ was obligated to elicit an opinion on that question from Carr's treating physician, Dr. Phillips. When evidence received from a treating physician is inadequate for purposes of the ALJ's determination as to whether a claimant is disabled, the ALJ must contact that physician to attempt to obtain additional information. See 20 C.F.R. § 404.1512(e); see also Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983) ("In Social Security cases the ALJ has a special duty to fully and fairly develop the record and to assure that the claimant's interests are considered.") "This duty exists even when the claimant is represented by counsel." Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996).

A treating physician's evidence is inadequate when it "contains a conflict or ambiguity that must be resolved" or "does not contain all the necessary information" to make a decision. See 20 C.F.R. § 404.1512(e), 416.912(e). Here, in a record of his February 28, 1997 examination, Dr. Phillips' "impression" was that plaintiff had "[v]ery symptomatic disc disease." (Tr. At 482.) At the time Dr. Phillips treated Carr, however, she had not worked for close to eight years. As a consequence, Dr. Phillips had no reason to impose any work restrictions as part of his treatment. Thus, in the absence of an inquiry by the Social Security Administration or ALJ, Dr. Phillips' opinion as to the effect of Carr's back condition on her ability to work remains unknown.

The inquiry at the step-two level "is a de minimis screening device to dispose of groundless claims." Smolen, 80 F.3d at 1290. "An impairment . . . can be found not severe only if the evidence establishes a slight abnormality that has no more than a minimal effect on an individual's ability to work." Id. (internal quotations and citations omitted). Here, in addition to Dr. Phillips' findings, Greg Holland, M.D., in a March 28, 1997 radiologic report, noted "a large uncinate spur projecting into the right sided neuroforamen at C3-4," (Tr. At 481), and an earlier MRI, performed November 15, 1996, showed "severe degenerative disc changes" and "pronounced degenerative disc changes" at L4-L5 and L5-S1, respectively, "with a superimposed right paracentral disc herniation at L4-L5." (Tr. At 493.)*fn4 Given the medical evidence suggesting Carr's condition may be more than "slight," it was incumbent upon the ALJ to follow up with Carr's treating physician before making a determination as to the severity of her impairment. Accordingly, the ALJ erred in failing to fully develop the record and the matter must be remanded to allow for adequate development.

C. Res Judicata

Carr claims that the ALJ was precluded from making a finding of no impairment because, in 1994, a previous administrative law judge had determined that Carr was in fact severely impaired.*fn5 Although the Appeals Council vacated that decision, Carr argues that the ALJ's finding of a severe back injury was not overturned and would still apply. (Pl.'s Reply at 5:6-12.) In support, Carr cites cases from the Sixth Circuit holding that when a prior ALJ's specific factual findings have not been challenged, they cannot be disturbed in subsequent hearings. See Jackson v. Apfel, 74 F. Supp.2d 698 (E.D. Mich. 1999) (citing Dennard v. Secretary of Health and Human Services, 907 F.2d 598 (6th Cir. 1990) and Drummond v. Comm'r of Soc. Servs., 126 F.3d 837 (6th Cir. 1997)). As the court in Jackson noted, however, "the court in Drummond signal[ed] that res judicata would not apply if there was evidence of an improvement in the plaintiffs condition." Jackson, 74 F. Supp.2d at 710. Because, for the reasons expressed above, the record has not been fully developed, any ruling on this issue at this time would be premature.

D. Subjective Pain Reports

Carr's final argument is that the ALJ's decision not to credit her claims of disabling pain was not supported by substantial evidence. "Once a claimant submits objective medical evidence establishing an impairment that could reasonably be expected to cause some pain, it is improper as a matter of law for an ALJ to discredit excess pain testimony solely on the ground that it is not fully corroborated by objective medical findings." Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989) (emphasis in original) (internal quotation and citation omitted). "In order to disbelieve a claim of excess pain, an ALJ must make specific findings justifying that decision." Id. at 602 (citing Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989)).

Here, the ALJ found that "the discomfort caused by [Carr's back] condition is treatable and does not prevent her from leading an active life." (Tr. at 18.) In making this finding, the ALJ discussed, inter alia, Dr Phillips's diagnosis, noting that lumbar epidural steroid injections had given Carr some relief and that her reflexes were normal. (Tr. at 17.) The ALJ's failure to adequately develop the record by obtaining Dr. Phillips' opinion as to Carr's work capacity, however, implicates the reliability of the ALJ's findings regarding Carr's credibility. Consequently, any ruling on this issue at this time would be premature.


For the reasons stated:

1. Plaintiff's motion for summary judgment is hereby GRANTED.

2. Defendant's motion for summary judgment is hereby DENIED.

3. The matter is hereby REMANDED for further administrative proceedings consistent with this decision.

The Clerk shall close the file.



Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.


1. Plaintiff's motion for summary judgment is hereby GRANTED.

2. Defendant's motion for summary judgment is hereby DENIED.

3. The matter is hereby REMANDED for further administrative proceedings consistent with the Court's January 9, 2003 decision.

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