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CARR v. APFEL

January 9, 2003

ROSEANNE CARR, PLAINTIFF,
v.
KENNETH APFEL, COMMISSION OF SOCIAL SECURITY, DEFENDANT



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

ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT; REMANDING ACTION FOR FURTHER PROCEEDINGS
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.

BACKGROUND

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

LEGAL STANDARD

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).

DISCUSSION

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 ...


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