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United States District Court, Northern District of California

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 environment [Cunha] will require the option of alternating at will between sitting and standing every 20-30 minutes.
(See Tr. 179-80.)

In a report dated August 30, 1999, Dr. Hunt stated that he did not believe Cunha was a "malingerer," and that he had reviewed Dr. Espinas' 1996 opinion and "basically agree[d]" with that opinion. (See Tr. 229.) Dr. Hunt also stated: "I think that a person who has ongoing pain complaints would have trouble maintaining attention and concentration for extended periods of time in the performance of her job and ordinary life." (See Tr. 230.)

Dr. Kale, in a chart note dated September 7, 1999, stated that his review of EMG and nerve conduction studies indicated Cunha had mild cubital tunnel syndrome and mild carpal tunnel syndrome, and that x-rays of Cunha's left shoulder were "essentially normal." (See Tr. 234.) Dr. Kale stated his "impression" that Cunha had a "left frozen shoulder," but indicated Cunha would not let him examine her left shoulder due to her reported pain. (See id.) On September 10, 1999, Dr. Kale stated that he had reviewed Dr. Hunt's report of August 30, 1999 and that he "agree[d] with this assessment and the conclusions stated therein." (See Tr. 235.)

Here, the ALJ set forth his reasons for not crediting the opinions of the above three physicians. The ALJ gave little deference to Dr. Espinas' 1996 opinion regarding Cunha's residual functional capacity. The ALJ characterized the opinion as "extreme"*fn4 and further found the opinion was "artificially inflate[d]" and lacked an "objective basis." (See Tr. 16-17.) In support of these findings, the ALJ cited treatment notes and reports by Dr. Espinas and other physicians, who either treated Cunha or saw her at the request of a treating physician, in which Cunha's impairments were repeatedly described as either "mild" or "minimal." In particular, the ALJ noted (1) Dr. Espinas' report of May 1992, in which Dr. Espinas stated Cunha had a "mild limitation" of range of motion of her neck, (see Tr. 16-17, 152); (2) a November 1992 radiology report by Douglas J. Gallagher, M.D. ("Dr. Gallagher"), in which Dr. Gallagher found "minimal bulging of the C4-5 and C5-6 intervertebral discs, of doubtful clinical significance," (see Tr. 16, 126); (3) a May 1992 diagnostic report by Jason Cheng, M.D. ("Dr. Cheng"), in which the results of an MRI indicated Cunha had "some minimal narrowing of the right C3-4 and C4-5 intervertebral foramina but the degree of narrowing is relatively mild and of questionable significance," (see Tr. 16-17, 136); and (4) an October 1992 report of Moses Taghioff, M.D. ("Dr. Taghioff"), a neurosurgeon to whom Cunha was referred by Dr. Hunt, in which Dr. Taghioff reported reduced range of motion in the lumbar and cervical spine, but only "minimal narrowing of the right C3-4 and C4-5 foramina," "mild Carpa I Tunnel Syndrome," and "ulnar neuropathy on the left side, albeit mild." (See Tr. 17, 146-49.)

The ALJ further referenced (1) Dr. Hunt's treatment notes from October 1992 and May 1993, which the ALJ interpreted as showing Cunha had "some tenderness on the left side, but normal range of motion and strength," (see Tr. 17, 154-55, 160); (2) a June 1993 report by Yuan-Chi Lin, M.D. ("Dr. Lin"), of the Stanford University Pain Management Clinic, which the ALJ interpreted as reflecting "an apparent lack of effort on strength testing," (see Tr. 17, 169);*fn5 and (3) Dr. Espinas' treatment notes from February 1995, which the ALJ interpreted as indicating "slight tenderness, but no focal weakness on physical examination." (See Tr. 17, 140-42.)*fn6 The ALJ also observed that Dr. Espinas latest report, dated August 11, 1999, likewise failed to provide any explanation for Dr. Espinas' opinions as to Cunha's functional capacity. (See Tr. 17, 227-28.)*fn7

The ALJ further noted that one of the most recent reports, a consultative report dated April 2, 1999, submitted by examining physician Dr. Batcheller and discussed in more detail infra, indicated that Cunha could move from a sitting to standing position without difficulty, could walk without difficulty, could invert and evert her ankles without difficulty, could move both shoulders, and could move her arms and legs in a normal manner. (See Tr. 18, 209-11.) Another of the more recent reports cited by the ALJ was that submitted by Robert Lieberson, M.D. ("Dr. Lieberson"), (see Tr. 18),*fn8 to whom Cunha was referred by one of her treating physicians, and who examined Cunha on July 16, 1997 and September 2, 1997. (See Tr. 221-23.) In his report, Dr. Lieberson stated he found no evidence that Cunha's pain was caused by a "focal neurological deficit," (see Tr. 222); he further found an MRI scan of her brain was "normal," thus ruling out the possibility Cunha had thalamic lesions, (see Tr. 221)*fn9; and was of the opinion that she did not need any surgery. (See id.) Finally, Dr. Lieberson stated: "I really do not know how to explain the patient's complaints of chronic pain." (See id.)

The ALJ gave "little weight" to Dr. Hunt's August 30, 1999 opinion, (see Tr. 17-18), and Dr. Kale's opinion of September 10, 1999, (see Tr. 18), both of which were substantially derivative of Dr. Espinas' 1996 opinion. The ALJ found Dr. Hunt's statement of agreement with Dr. Espinas' 1996 opinion did not provide "an independent and detailed estimate of the claimant's functional capacity" and was "not supported by his own treatment records," specifically, Dr. Hunt's contemporaneous treatment notes, which the ALJ interpreted as indicating Cunha had "good range of motion in the neck and shoulders, with normal strength." (See Tr. 17, 226.) As the ALJ further explained, he discounted Dr. Kale's opinion that Cunha had a "frozen shoulder," because she would not allow Dr. Kale to examine her shoulder, and discounted Dr. Kale's stated agreement with Dr. Hunt's assessment, because Dr. Kale's opinion was "twice removed from the assessment to which Dr. Hunt was agreeing." (See Tr. 18.)

In sum, the ALJ provided specific and legitimate reasons, supported by substantial evidence in the record, for rejecting the opinion of Dr. Espinas, as well as of Drs. Hunt and Kale, who essentially adopted Dr. Espinas' opinion, specifically, that the nature of the limitations set forth in Dr. Espinas' 1996 report were inconsistent with his own treatment notes and the other medical reports in the Administrative file. Moreover, the ALJ did not rely solely on the above-described inconsistencies. As noted, in giving less deference to the opinions of Drs. Espinas, Hunt and Kale, the ALJ credited the opinions of examining physicians Dr. Miller and Dr. Batcheller.

"Where the opinion of the claimant's treating physician is contradicted, and the opinion of a nontreating source is based on independent clinical findings that differ from those of the treating physician, the opinion of the nontreating source may itself be substantial evidence." Andrews, 53 F.3d at 1041. As the Ninth Circuit has explained, "it is then solely the province of the ALJ to resolve the conflict." see id.; see also Tonapetyan, 242 F.3d at 1149 (holding examining physician's opinion that claimant could lift and carry 20 to 50 pounds constituted "substantial evidence" in support of ALJ's finding that claimant could perform medium work, where examining physician's opinion was based on results of "his own independent examination"); Allen v. Heckler, 749 F.2d 577 579 (9th Cir. 1984) (holding where examining physician offered opinion, based on "his own neurological examination," that claimant could perform sedentary work, while treating physician opined that claimant was totally disabled, ALJ's finding that claimant could perform sedentary work was supported by "substantial evidence").

Dr. Miller, at the request of a state agency, conducted an orthopedic consultative examination of Cunha in September 1995. (See Tr. 172.) In a report dated September 20, 1995, Dr. Miller stated that during his physical examination of Cunha, "[t]here [was] obvious embellishment and amplication of her symptoms," explaining that "she reacts even before she is touched." (See Tr. 173.) According to Dr. Miller, Cunha's "station and gait" were normal, the range of motion of her cervical spine, thoracolumbar spine, and both shoulders was normal, and she had normal strength in her shoulders, elbows, hips, knees and feet. (See Tr. 172-75.) In conclusion, Dr. Miller found "no objective evidence of orthopedic abnormality" and "no objective evidence to suggest restrictions or limitations of functional capacity from an objective orthopedic standpoint." (See Tr. 176.)

Cunha was seen by Dr. Batcheller, an orthopedic surgeon, following the decision by the Appeals Council remanding the matter to the ALJ. (See Tr. 208-11.) Dr. Batcheller conducted a physical examination on April 2, 1999 and concluded that Cunha had "[m]ultiple somatic complaints, etiology undetermined and unsubstantiated by objective physical findings," and that her "multiple somatic complaints appear to be psychosomatic in origin." (See Tr. 211.)*fn10 With respect to Cunha's left arm, Dr. Batcheller stated that although Cunha exhibited "generalized weakness," he found "no evidence of muscular atrophy, skin changes, or other objective findings of neuropathy." (See Tr. 210.) With respect to Cunha's legs, Dr. Batcheller stated that although Cunha "indicate[d] vague areas of hypesthesia*fn11 scattered throughout both legs below the knee," he found "no atrophic changes in muscle or skin" and "no joint deformity, laxity or restriction of motion." (See id.) Dr. Batcheller also noted that during his examination, when he requested that Cunha perform "heel and toe walk maneuvers," she performed those maneuvers "with what appear[ed] to be feigned difficulty." (See Tr. 209.)*fn12 As discussed above, the results of his examination indicated that Cunha had little difficulty performing such functions as sitting, standing, walking, and moving her arms, legs and shoulders. (See Tr. 209-10.) In Dr. Batcheller's opinion, based on his examination, Cunha was "physically capable of performing activities commensurate with her age and sex without restriction." (See Tr. 211.)

As set forth above, the opinions of Drs. Miller and Batcheller were based on each physician's independent clinical findings. Consequently, their opinions constitute additional substantial evidence in support of the ALJ's finding that Cunha retained the functional capacity to perform work related activities, with the exception of certain lifting restrictions. See Andrews, 53 F.3d at 1041. Cunha argues that the ALJ should have discounted the opinions of Drs. Miller and Dr. Batcheller because nothing in their reports indicates they were provided with Cunha's medical records. Each doctor, however, performed his own examination and Cunha fails to demonstrate how her records, or anything contained therein, would cast doubt on either opinion such that the ALJ was required to reject it. Indeed, as noted above, Cunha's medical records include findings by several physicians that Cunha's impairments had no more than a mild or minimal effect on her functional capacity, findings that are consistent with the opinions of Drs. Miller and Batcheller.

Accordingly, the ALJ did not err with respect to his consideration of the medical evidence.

B. Credibility

As noted, Cunha, in her application for benefits, asserted that she could not work as a result of pain and numbness on her left side. (See Tr. 101.) At the first of the two hearings conducted by the ALJ, Cunha testified she experienced pain in her neck, shoulder, arm, hand, lower back and hip, as well as headaches.*fn13 (See Tr. 49.) She testified that her pain presented as an ache with tingling and numbness, that those symptoms increased with her activity level, and that the pain was "constant." (See Tr. 49-50.) In addition, Cunha testified that her pain limited her to walking "to the end of the block"*fn14 and to light housekeeping, such as dusting, making beds and laundry. (See Tr. 48-49, 53.) She also testified that she was able to shop for groceries twice a week, but required assistance in putting groceries in her car and then bringing them into the home. (See Tr. 53-54.)

"Where objective medical findings establish the existence of medical impairment, but a claimant testifies that she experiences pain at a higher level, the [ALJ] is free to disbelieve that testimony." Magallanes v. Bowen, 881 F.2d 747 755 (9th Cir. 1989). "The [ALJ] must, however, make a specific and justifiable finding that the claimant's testimony is not credible." Id. Any such finding must be "sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony." Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1994).

Here, the ALJ determined that Cunha's testimony regarding the nature and severity of her pain limitations was "overstated and not credible." (See Tr. 20.) In support of this finding, the ALJ cited: (1) the mild nature of her conditions as reported by her treating physicians, and the "almost nonexistence" of "clinical findings" by the examining physicians; (2) observations by some physicians that Cunha had "provided poor effort on testing"*fn15 and (3) the fact that Cunha has "required very little ongoing treatment" and has a "need for no more than over-the-counter pain medication." (See Tr. 19.)

With respect to the third of these findings, Cunha argues that the ALJ stepped outside his role as an adjudicator and usurped the role of her medical advisors. In determining a claimant's credibility, however, an ALJ may consider the types of treatment a claimant receives or does not receive. See Matthews v. Shalala, 10 F.3d 678, 679-80 (9th Cir. 1993) (holding ALJ properly considered, as part of credibility analysis, that claimant received minimal treatment to control symptoms); Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989) (holding ALJ, in finding claimant's claim of disabling pain not credible, properly considered that claimant received only "minimal conservative treatment" and had not recently received physical therapy). In any event, Cunha fails to challenge, or even address, the ALJ's finding that she embellished her symptoms during at least three medical examinations, each conducted by a different physician. This finding alone casts serious doubt on Cunha's credibility.

Cunha further argues that the ALJ erred by failing to discuss all possible factors that could be relevant to a credibility determination, such as her "excellent work history" prior to the onset of her impairments. (See Pl.'s Mot. at 12:1-2.) Cunha, however, provides no authority to support her argument that an ALJ must discuss every possible factor having some bearing on the question before making a finding as to credibility.

Accordingly, Cunha has not shown that the ALJ erred with respect to his credibility findings.

C. Vocational Expert

Cunha argues that the ALJ erred by not obtaining testimony from a vocational expert.

If a claimant, at the fourth step of the sequential evaluation, demonstrates that she cannot perform her past relevant work, the burden shifts to the Commissioner to show, at the fifth step, that the claimant can perform other work existing within the national economy. See Bruton v. Massanan, 268 F.3d 824, 827 n. 1 (9th Cir. 2001). At the fifth step, the testimony of a vocational expert is relevant and sometimes mandatory. See, e.g., Matthews, 10 F.3d at 681 (holding ALJ "must use a vocational expert" at fifth step in absence of "other reliable evidence of a claimant's ability to perform specific jobs").

Here, the ALJ, at the fourth step of the evaluation, determined that Cunha's impairments did not prevent her from performing her past relevant work as an administrative secretary, after finding that the duties of such a position were within Cunha's functional limitations.*fn16 This determination made it unnecessary for the ALJ to proceed to the fifth step of the analysis. See Crane v. Shalala, 76 F.3d 251, 255 (9th Cir. 1996) (holding ALJ must proceed to fifth step only where claimant cannot perform past relevant work). While testimony of a vocational expert may be considered by the ALJ in determining whether a claimant has the ability to perform her past relevant work, an ALJ is not required to call a vocational expert at the fourth step. See Matthews, 10 F.3d at 681 (holding vocational expert's testimony at step four may be "useful" but "not required").

Accordingly, the ALJ did not err by failing to obtain testimony from a vocational expert.

D. Duty to Develop Record

At the second hearing before the ALJ, Cunha testified that her treating physician, Dr. Espinas, would not order another MRI, the most recent having been performed before the first hearing. (See Tr. 68-69.) When Cunha's representative then inquired of Cunha whether she would agree to an MRI if the ALJ ordered one, the ALJ interrupted and stated: "[W]e can't do that." (See Tr. 70.) Cunha argues that the ALJ, by not ordering an MRI, failed to comply with his duty to develop the record.

"In Social Security cases, the ALJ has a special duty to develop the record fully and fairly and to ensure that the claimant's interests are considered, even when the claimant is represented by counsel." Mayes v. Massanari, 276 F.3d 453 459 (9th Cir. 2001). "An ALJ's duty to develop the record further is triggered only when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence." Id.

Cunha argues that because the ALJ, at the beginning of the second hearing, observed that Cunha's condition had "deteriorated" since 1992 and that "very little has been added" to the record after the remand, (see Tr. 63), the ALJ should have ordered an MRI which, according to Cunha, "might" reflect a deteriorated condition. (See Pl.'s Mot. at 11:18.) As noted, however, Cunha's treating physician, Dr. Espinas, declined to order an MRI. Further, nothing in the most recent reports submitted by Cunha's other treating physicians, Drs. Hunt and Kale, indicates a need for another MRI or that, in the absence of such a test, either physician was unable to form an opinion as to Cunha's impairments. Accordingly, there is no suggestion that any physician was of the view that an updated MRI was necessary in order to allow for proper evaluation of Cunha's impairments.

Moreover, the ALJ did develop the record after the conclusion of the second hearing when he left the record open for one month to allow Cunha to submit additional medical evidence, specifically, any updated information concerning her medical condition or functional limitations. See Tr. 66-67; see also Tr. 227-35 (records submitted by Cunha subsequent to the second hearing); Tonapetyan, 242 F.3d at 1150 (holding where ALJ has duty to develop record, duty may be discharged "in several ways," including "keeping the record open after the hearing to allow supplementation of the record").

Accordingly, Cunha fails to establish that the ALJ did not adequately develop the record.


For the reasons stated:

1. Plaintiff's motion for summary judgment is hereby DENIED;

2. Defendant's cross-motion for summary judgment is hereby GRANTED, and the decision of the Commissioner is hereby AFFIRMED.

The Clerk shall close the file.


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