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May 5, 2003


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

Plaintiff Barbara Cunha ("Cunha") brings the above-titled action pursuant to 42 U.S.C. § 405 (g) for judicial review of a final decision of the Commissioner of Social Security ("Commissioner"), denying her request for disability benefits under the Social Security Act. Before the Court is Cunha'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 on the papers without oral argument. Having considered the papers submitted in support of and in opposition to the motions, the Court rules as follows.


Cunha was born on May 25, 1939. (Certified Transcript of Administrative Proceedings ("Tr.") 75.) She filed her current application for benefits on July 6, 1995, alleging that she has been unable to work since May 29, 1992 as a result of "pain & numbness left side — head, face, neck, shoulder, arm, hand, hip, foot." (Tr. 75, 101.) After Cunha's application was denied by the Social Security Administration ("SSA") initially, (Tr. 79-82), and on reconsideration, (Tr. 86-89), Cunha requested a hearing before an Administrative law judge ("ALJ"). (Tr. 39.)

On August 14, 1996, the ALJ conducted a hearing and, on August 28, 1996, issued a decision finding that Cunha was not disabled because her "allegations of disability are found not credible" and she did not have a "severe impairment." (Tr. 191, 196.) Cunha then filed with the Appeals Council a request for review of the ALJ's decision. (Tr. 199-200.) By order dated August 25, 1998, the Appeals Council granted review, and remanded the matter to the ALJ with directions to (1) "[o]btain additional evidence concerning the claimant's impairments in order to complete the Administrative record in accordance with regulatory standards concerning consultative examinations and existing medical evidence," which evidence "may include, if warranted and available, a consultative orthopedic examination and medical source statements about what the claimant can still do despite the impairments"; (2) "reevaluate the claimant's impairments . . . providing rationale for the conclusions reached"; (3) "[g]ive further consideration to the claimant's maximum residual functional capacity during the entire period at issue and provide rationale with specific references to evidence of record in support of the assessed limitations"; and (4) "[i]f warranted by the expanded record, obtain evidence from a vocational expert to determine whether the claimant has acquired any skills that are transferable with very little, if any, vocational adjustment to other occupations." (Tr. 202-03.)

Following a second hearing held August 17, 1999,*fn1 the ALJ issued a decision dated November 5, 1999, again finding that Cunha was not disabled. (Tr. 14-20.) The ALJ found Cunha had "severe*fn2 disc space narrowing of the lumbar and cervical spine," "mild left carpal tunnel syndrome," and "mild left ulnar nerve palsy," but that her impairments did not prevent her from performing her past relevant work as an administrative secretary. (Tr. 20.) In so ruling, the ALJ found that Cunha retained the "residual functional capacity to perform work related activities except for work involving lifting or carrying more than 20 pounds occasionally, or more than 10 pounds frequently." (Id.)

Cunha again filed with the Appeals Council a request for review of the ALJ's decision. (Tr. 10.) On September 7, 2000, the Appeals Council denied the request. (Tr. 4-5.) Thereafter, Cunha filed the instant action.


The Commissioner's determination to deny disability benefits will not be disturbed if the decision is supported by substantial evidence and based on the application of correct legal standards. See Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). "Substantial evidence means more than a mere scintilla, but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). The reviewing court must consider the Administrative record as a whole, and weigh both the evidence supporting and detracting from the ALJ's decision. See id. If the evidence is susceptible to more than one rational interpretation, the reviewing court will uphold the decision of the ALJ. See id.


Disability claims are analyzed under a five-step evaluation process. See 20 C.F.R. § 404.1520.*fn3 Here, because the ALJ found Cunha's impairments did not preclude her from performing her past relevant work, the ALJ denied Cunha's application at the fourth step. Cunha argues that the ALJ erred by (1) not accepting the opinions offered by her treating physicians; (2) finding Cunha was not credible; (3) failing to obtain testimony from a vocational expert; and (4) failing to properly develop the record when he declined to order an updated MRI.

A. Medical Evidence

Cunha argues that the ALJ erred by rejecting the opinions of her treating physicians Oscar E. Espinas, M.D. ("Dr. Espinas"), David A. Hunt, M.D. ("Dr. Hunt"), and Ashay A. Kale, M.D. ("Dr. Kale"), (see Pl.'s Mot. at 10:17-18), who offered the opinion that Cunha's impairments precluded her from engaging in a number of work activities. The ALJ instead credited the opinions of examining physicians Charles Miller, M.D. ("Dr. Miller") and John Batcheller, M.D. ("Dr. Batcheller"), who offered the opinion that Cunha's impairments did not preclude her from working.

"When there is a conflict between the opinions of a treating physician and an examining physician, as here, the ALJ may disregard the opinion of the treating physician only if he sets forth specific and legitimate reasons supported by substantial evidence in the record for doing so." Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001) (internal quotations and citation omitted).

In a report dated July 8, 1996, Dr. Espinas opined that Cunha's impairments have the following effects on Cunha's ability to function in a work environment:

She is barely able to do any household chores except light ones. She is not capable of lifting, pushing or pulling more than 10 lbs in the course of an 8 hour, 5 day a week employment. She can only tolerate sustained standing for less than 30 minutes. At present she is still able to ambulate without any assistive devices. Due to the diminished strength in her grip she cannot be expected to grasp, hold or seize objects with her hands. . . . Significant use of her hands and upper extremities will tend to accentuate her pain. In a work ...

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