United States District Court, N.D. California
April 6, 2004.
RICHARD J. MCCORMICK, Plaintiff,
JO ANNE B. BARNHART, Commissioner of Social Security, Defendant
The opinion of the court was delivered by: MAXINE CHESNEY, District Judge
ORDER DENYING PLAINTIFF'S
MOTION FOR SUMMARY JUDGMENT;
GRANTING DEFENDANT'S MOTION
FOR SUMMARY JUDGMENT
Plaintiff Richard J. McCormick ("McCormick") brings the
above-entitled action, pursuant to 42 U.S.C. § 405 (g), for judicial
review of the final decision of the Commissioner of Social Security
("Commissioner") denying his application for disability benefits pursuant
to Titles II and XVI of the Social Security Act ("the Act"). Before the
Court is McCormick'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.
McCormick was born on October 18, 1961. (See Tr. 132.) He has
an 11th grade education. (See Tr. 149.) From 1979 to 1980, he worked in
an automobile body shop. (See id.) He worked as a roofer from
1982 to 1985, and as a drill press operator in 1986. From 1998 through 1990, he worked as a night manager in a fast food
restaurant. (See Id.) For approximately six months in 1991, he
worked as a cabinet stainer. (See Tr. 38, 149.) McCormick worked as a
production assistant in a brewing company from 1991 to 1993, and was
terminated from that position on August 2, 1993. (See Tr. 147,
149.) He has not worked since that date. (See Tr. 35, 40.)
On April 22, 1998, McCormick filed applications for disability benefits
and supplemental security income ("SSI") benefits, alleging that he has
been unable to work since February 3, 1993, as a result of injuries to
his back, neck, right shoulder, and rib, in addition to depression and
ulcers and other stomach problems. (See Certified Transcript of
Administrative Proceedings ("Tr.") 132-134, 147, 355-357.) After the
application was denied initially and on reconsideration by the Social
Security Administration (see Tr. 95-98, 102-06, 359-362, 364-368),
McCormick requested a hearing before an Administrative Law Judge ("ALJ").
(See Tr. 108).
On October 5, 1999, the ALJ conducted a hearing at which McCormick
appeared without representation. (See Tr. 30-92.) The ALJ heard testimony
from two witnesses: McCormick and a vocational expert ("VE"). (See
Id.) At the hearing, McCormick amended the date of onset of his
alleged disability to August 2, 1993. (See Tr. 40.)
On November 8, 1999, the ALJ issued her decision (See Tr.
14-26), and found McCormick not disabled based on the five-step
sequential evaluation process set forth in the Code of Federal
Regulations.*fn1 See 20 C.F.R. § 404.1520, 416.920. (See
Tr. 17.) At step one, the ALJ concluded that McCormick has not engaged in
substantial gainful activity since August 2, 1993. (See Tr. 21,
25.) At step two, the ALJ found McCormick has "severe impairments of
degenerative changes of the cervical spine with some disc protrusion at
C5-6, cervical strain, right shoulder impingement syndrome, and chronic
peptic ulcer disease." (See Tr. 25.) The ALJ also found that
McCormick's "adjustment disorder, marijuana use, bilateral inguinal
hernias and a small umbilical hernia and headaches do not represent
severe impairments." (See Id.) With respect to step three, the
ALJ concluded that McCormick's severe impairments did not meet or equal
an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1,
because McCormick "lacks the requisite muscle spasm, significant
limitation of range of motion and radicular distribution of significant
motor loss with muscle weakness and sensory and reflex loss of Listing
1.05C" and there was no "evidence that any of claimant's other conditions
meet or equal a listing." (See Tr. 21, 25.)
Turning to step four, the ALJ concluded that McCormick, despite his
severe impairments, could perform his past work as a fast food manager
and thus was not disabled. (See Tr. 24.) The ALJ also concluded, at step
five, that McCormick had the residual functional capacity ("RFC") to
perform work "at the light exertional level with the ability to perform
occasional climbing, balancing, stooping, kneeling and crouching and the
need to avoid frequent overhead lifting." (See Tr. 25.)
McCormick requested review of the ALJ's decision by the Appeals
Council, which denied the request on September 24, 2001. (See
Tr. 7-9.) Thereafter, McCormick commenced this action for judicial review
pursuant to 42 U.S.C. § 405(g) and 1383(c)(3).
STANDARD OF REVIEW
The Commissioner's determination to deny disability benefits will not
be disturbed if it is supported by substantial evidence in the record as
a whole and based on the application of correct legal standards. See
Reddick v. Charter. 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 AL J'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.
The claimant has the burden of proving a disability within the meaning
of the Act. See Maounis v. Heckler. 738 F.2d 1032, 1034 (9th
Cir. 1984). Under the Act, for purposes of both disability benefits and
SSI benefits, a claimant is considered disabled when he is unable "to
engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment . . . which has lasted or
can be expected to last for a continuous period of not less than 12
months." See 42 U.S.C. § 423(d)(1)(A), 1382c(3)(A).
McCormick argues the ALJ's decision should be reversed with directions
to award benefits, or in the alternative, the matter should be remanded
for further proceedings. McCormick asserts the ALJ erred by: (1) failing
to provide specific and legitimate reasons for rejecting the opinion of
his treating physician, Robert Rushton, M.D. ("Dr. Rushton"); (2)
substituting her own medical opinion for those of the treating
physicians; (3) concluding that McCormick's daily activities supported a
finding he was not disabled; (4) concluding that McCormick's previous
work as a fast food manager constituted substantial gainful activity; and
(5) failing to fully develop the record.
A. The ALJ Did Not Err by Rejecting the Treating Physician's
Opinion That McCormick Was Too Disabled to Work
McCormick argues that the ALJ erred by rejecting the opinion of his
treating physician, Dr. Rushton. Dr. Rushton opined that McCormick's
impairments precluded him from engaging in all work. (See Tr.
317-318.) The ALJ credited the opinions of examining physician Steven
McIntire M.D. ("Dr. McIntire") and the Disability Determination Services
medical advisors, all of whom opined that McCormick's impairments did not
preclude him from working at the light exertional level.*fn2 (See Tr.
270-273, 247-254, 333-340.)
1. Legal Standard
"Because treating physicians are employed to cure and thus have a
greater opportunity to know and observe the patient as an individual,
their opinions are given greater weight than the opinions of other
physicians." Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir.
1996) (citations omitted). Where the treating physician's opinion
contradicts the opinion of an examining or consulting physician, the
Commissioner must provide "`specific and legitimate reasons' supported by
substantial evidence in the record" for rejecting the treating
physician's opinion. See Lester v. Chater. 81 F.3d 821, 830
(9th Cir. 1996) (quoting Murray v. Heckler. 722 F.2d 499, 502
(9th Cir. 1983)); see also 20 C.F.R. § 404.1527(d)(2)
(requiring the Social Security Administration always to "give good
reasons in [the] notice of determination or decision for the weight
[given to the] treating source's opinion"). "The ALJ can meet this burden
by setting out a detailed and thorough summary of the facts and
conflicting clinical evidence, stating his interpretation thereof, and
making findings.'" Magallanes v. Bowen, 881 F.2d at 751
(quoting Cotton v. Bowen. 799 F.2d 1403, 1408 (9th Cir. 1986));
see also Social Security Ruling ("SSR") 96-2p ("the notice of
the determination or decision must contain specific reasons for the
weight given to the treating source's medical opinion, supported by the
evidence in the case record, and must be sufficiently specific to make
clear to any subsequent reviewers the weight the adjudicator gave to the
treating source's opinion and the reasons for that weight.")
2. Opinions of Treating Physician Dr. Rushton
The earliest indication in the record of a therapeutic relationship
between Dr. Rushton and McCormick is a letter from Dr. Rushton to Harry
B. Matossian, M.D. ("Dr. Matossian"), dated November 19, 1997, in which Dr. Rushton asked
Dr. Matossian for a current diagnosis of McCormick's ulcers.
(See Tr. 332.) Dr. Rushton also noted, regarding McCormick's
costochondritis, that a recent CT scan showed no abnormality other than
asymmetry to his chest wall. (See id.) In February 1998, when
McCormick complained of pain in his left posterior rhomboid group that
had been bothering him for several weeks, Dr. Rushton recommended he try
Flexeril. (See Tr. 330.)
Thereafter, Dr. Rushton's records for January 1998 indicate that he
sent a letter to Dr. James Neel ("Dr. Neel") about McCormick.
(See Tr. 331.) On January 23, 1998, Dr. Neel reported to Dr.
Rushton the results of Dr. Neel's examination of McCormick conducted
earlier that same day. (See Tr. 228.) Dr. Neel initially noted
that McCormick told him he first developed soreness between his shoulder
blades and in his right upper trapezius in early 1993, (See Tr.
228), and that he was treated by a chiropractor until August 1993, but
suffered "epigastric discomfort/sternal pain" during the twisting portion
of his chiropractic adjustments. (See Id.) McCormick told Dr.
Neel that he was treated for a stomach ulcer in July 1993.
(See. Tr. 229.) According to Dr. Neel, McCormick told him that
his shoulder pain worsened between 1993 and 1995 and became more
frequent, centering primarily in the intrascapular area, right shoulder,
and sternum, and that his stomach/sternal pain persisted. (See id.) As
described in Dr. Neel's records, Dr. G.J. Kucera reportedly determined
McCormick's condition to be permanent and stationary in 1995, and felt
that McCormick's condition did not preclude him from his usual and
customary occupation. (See id., and Tr. 232.) McCormick told
Dr. Neel that he developed severe sternal pain in the fall of 1997
following physical activity, went to the emergency room, and subsequently
was presented to Dr. Rushton for evaluation. (See Tr. 229.)
McCormick stated that he was told he had subluxation of a rib, was
referred to someone in San Francisco, and was told that surgery was
recommended. (See Id.)
At the time of Dr. Neel's evaluation, McCormick was complaining of
intermittent discomfort, described as "like a spasm," in his central
lower sternum, right upper trapezius and right intrascapular areas.
(See Tr. 229.) McCormick also told Dr. Neel that the right side of his neck and right shoulder were stiff, the right side of
his body felt weak, and he had "a sense of diminished sensation in his
right thumb, index, and 3rd fingers about once a week." (See
Tr. 230). McCormick also told Dr. Neel that he felt that he was unable to
work. (See Tr: 231.) Dr. Neel noted that McCormick's 1997 chest
x-ray, bone scan, and CT scan of his chest, all were negative. (See
In examining McCormick, Dr. Neel found McCormick's chest to be
symmetrical, other than a "prominence over the right costochondral
junction," and found tenderness over the right intrascapular region, and
the right costochondral prominence. (See Id.) McCormick showed
slightly diminished sensation throughout the right upper and lower
extremities extending into the right face. (See Tr. 232.) His cervical
range of motion was normal, however, and his shoulder range of motion was
also normal except for right shoulder extension and internal rotation.
Dr. Neel stated in his report:
Mr. McCormick obviously presents a challenging
problem. He clearly has an objective abnormality
of the right lower costochondral junction. I am
not sure I understand what this represents. There
may be some degree of subluxation and/or chronic
inflammation. Remarkably, his chest x-ray, bone
scan, and chest CT scan were all negative.
(See Tr. 233.) Dr. Neel expressed some doubts about the
causes of McCormick's symptoms, but recommended obtaining cervical films
and injecting McCormick's right costochondral junction, as well as a
program of stretching and strengthening. (See Tr. 234.) Dr. Neel
I doubt Mr. McCormick can return to his previous
job*fn3 which requires repetitive use of his
right upper extremity in a repetitive pushing and
pulling environment. It is my opinion that would
only further exacerbate his current symptoms. That
being the case, I think it is very important for
Mr. McCormick to proceed with some sort of
(See Tr. 234.)
McCormick saw Dr. Rushton again on January 29, 1998. (See Tr.
331.) Dr. Rushton's notes indicate that Dr. Neel felt "there was nothing
anyone could do," although it is unclear whether Dr. Rushton heard that statement from Dr. Neel
himself or from McCormick. (See Id.) On April 2, 1998, Dr.
Rushton's notes indicate that he received a copy of Dr. Neel's
consultation and spoke with Dr. Neel by telephone. (See Tr.
329.) Dr. Rushton's notes of this conversation state:
He has never seen anything like this before. He
says there is no x-ray proof he is subluxing but I
am certain he is. He discussed an anesthesiologist
could block his rib in both sections prior to
recommended pulling the rib out. . . . [H]e
recommended getting C-spine plain films, did not
recommend C spine MRI, idea being maybe he has
trapezius spasm which is generalizing down in the
rhomboid., He wants to have followup as he has
never seen anything like this[.]
(See Tr. 329.) Dr. Rushton's notes for April 6, 1998
Will proceed in the above fashion, obtain C-spine
films, if no evidence of any abnormalities, will
go forward with an anesthesiologist at Dr. Meal's
recommendation. If the C-spine films are
suggestive of disc disease will obtain MRI of
(See Tr. 326.)
In April 1998, Dr. Rushton and Dr. Matossian jointly referred McCormick
to Jens Vinding, M.D. for an MRI of the cervical spine, based on
McCormick's clinical history of cervical disc disease, and a gallbladder
ultrasound study because of McCormick's clinical history of "atypical
upper abdominal pain." (See Tr. 327-28.) As a result of the
gallbladder study, McCormick was found to have "four or five sonar
densities measuring between 2.0 and 4.0 mm in size . . . within the
gall bladder . . . due to cholelithiasis." (See Tr. 328.) The cervical
MRI showed a "forward shift of C6 on C5 with narrowing of disc space and
some narrowing of neural foramen particularly on the right."
(See Tr. 327.) On May 11, 1998, another MRI of McCormick's
cervical spine showed "[d]egenerative disc changes C5-6 with protruding
disc posteriorly causing narrowing of neural foramen on the right side.
Evidence for hypertrophic change [was] also noted." (See Tr.
On July 13, 1998, McCormick complained to Dr. Rushton about stomach
pain and headaches and discussed his gallstones. (See Tr. 318.)
Dr. Rushton recommended "chem 12, amylase" during or shortly after
abdominal pain and recommended an "HIDA scan" shortly after such pain.
(See Id.) In order to fill out a Social Security form, Dr. Rushton also performed
various tests relating to McCormick's neck and shoulder pain. (See
Id.) He found that McCormick had full flexion forward, although he
had difficulty turning his neck to the right, but that he had less than
half the normal extension in his neck. (See Id.) Dr. Rushton
also found that McCormick had an approximately 60 percent reduction in
sensation in his right hand, and although his grip strength was equal in
both hands, he had "subluxation and popping under joints[.]" (See
Id.) Dr. Rushton further found "[n]o obvious atrophy other than
. . . contracture of the rhomboid muscle group." (See Id.)
Dr. Rushton's notes indicate that he told McCormick that "from [a]
Medi-Cal standpoint [he] certainly is disabled." (See Id.)
On July 13, 1998, Dr. Rushton also informed McCormick that he was
referring him to Dr. William Bracewell ("Dr. Bracewell") for an
electroneuromyographic examination ("EMG"). (See id.) On August
12, 1998, Dr. Bracewell reported conducting an EMG on "the rhomboids,
supraspinatus, infraspinatus, and the right posterior deltoid." (See Tr.
310.) Although "[n]o active motor denervation was noted," Dr. Bracewell
found that "[m]otor unit changes were noted in the right deltoid which is
consistent with the previous C6 motor unit changes." (See id.)
On August 25, 1998, Dr. Rushton wrote a letter to an unspecified
recipient, which stated in its entirety:
Mr. McCormick is severely disabled from cervical
disk disease. He is unable to work in any fashion.
He will remain disabled for a period of one year.
His disability dates back at least 5 years.
(See Tr. 317.)
In September 1998, Dr. Rushton's notes indicate that he and McCormick
were looking forward to McCormick's consultation with a Dr. Hunstock
later that month. (See Tr. 316.) In a June 14, 1999 letter to Dr.
Rushton, Alan T. Hunstock, M.D. ("Dr. Hunstock") referred to McCormick's
September 1998 visit to his office, and stated he believed that
radiculopathy might be contributing to McCormick's pain and that surgery
might be effective. (See Tr. 350.) Dr. Hunstock, a
neurosurgeon, also felt that McCormick "had significant problems with his
chest wall and rib disorder and this may have mimicked his current pain problem." (See id) Dr. Hunstock recommended
that McCormick obtain a second neurological opinion and stated that if
the consensus was to operate, he would be happy to proceed. (See
In a letter, dated October 14, 1998, and received by the State of
California Department of Social Services Disability and Adult Programs
Division on October 19, 1998, Dr. Rushton opined:
Mr. McCormick suffered a work comp injury in Feb
of 1993 which was misdiagnosed but now appears to
be a C6 cervical disk herniation with nerve root
impingement. This has resulted in rhomboid muscle
spasm and contracture. He is subluxing his rib
anteriorly at the sternum and probably posteriorly
where the posterior Right seventh rib connects
with the T7 transverse process. He has markedly
limited use of his right upper extremity secondary
to this injury and he has therefore been disabled
(See Tr. 314.)
On September 10, 1999, an MRI of McCormick's right shoulder was
performed by Dr. Vinding at Dr. Rushton's request. (See Tr.
354.) Dr. Vinding found "some hypotrophic changes of the AC compartment"
and "an indentation upon the supraspinatus muscle in the area where the
muscular tendinous junction is located," as well as a "small amount of
joint effusion." (See id.) Dr. Vinding found no other
abnormalities, and concluded that McCormick had "apparent impingement
syndrome due to hypotrophic changes of the AC compartment inferiorly."
In a letter dated October 1, 1999, Dr. Rushton opined:
Mr. McCormick suffered a work comp injury in Feb
of 1993 which was misdiagnosed but now appears to
be a C6 cervical disk herniation with nerve root
His job involved a mechanical type of twisting
motion from right to left which always occurred in
a regular fashion in the same posture at a rapid
frequency throughout the day.
He also has rhomboid muscle spasm and contracture
although it is improving. He is subluxing his
seventh rib anteriorly at the sternum and probably
posteriorly where the posterior Right seventh rib
connects with the T7 transverse process. On an MRI
scan he has evidence of Rt shoulder impingement
with increase joint effusion and hypertrophy of
the Rt clavicular acromial joint. All of these
findings are consistent with the over use of the
right upper extremity and the twisting required by
his particular job at the He has limited use of his right upper extremity
secondary to this injury and he has therefore been
disabled since 1993.
He has recently been found to have bilateral
inguinal hernias and an umbilical hernia all of
which were repaired 9/28/99 and will keep him
disabled on that basis alone though 11/1/99. His
hernias were first noted approximately 4/25/99.
He also has a symtomatic [sic] hiatal hernia, had
a peptic ulcer treated August of 97. He has on
going dyspepsia. He has gallstones which are felt
to be asymptomatic.
Mr. McCormick has been ligitimately [sic] disabled
for some time. If he were capable of working he
would be working.
(See Tr. 353.)
3. Examining Physicians
In rejecting Dr. Rushton's opinion, the ALJ relied on the report of
examining physician Steve McIntire, M.D. ("Dr. McIntire"). On May 2,
1999, Dr. McIntire conducted a "comprehensive orthopedic examination" of
McCormick, based on McCormick's complaints of neck and back pain, and
shoulder pain. (See Tr. 270.) Dr. McIntire based his findings on his
review of a prior "physical therapy report as well as clinic report and
an MRI report," in addition to the physical examination he conducted.
(See Id.) Dr. McIntire conducted various range of motion tests
and noted the following:
Cervical spine exam: I do not detect paravertebral
muscle spasms or vertebral abnormalities. I do not
detect pain on palpitation about the neck. I do
not discern muscle spasms. There does not appear
to be pain induced on range of motion testing of
the cervical spine.
Right shoulder examination: I do not detect
significant joint deformities, effusions, or point
tenderness. Impingement signs are absent. The
claimant exhibits slight discomfort on range of
(See Tr. 272.) Dr. McIntire also noted:
Objectively the claimant has full range of motion
of the cervical spine and right shoulder. There is
slight discomfort on range of motion testing of the
right shoulder. The claimant does not have other
significant findings on examination. There are no
findings to suggest a cervical myelopathy or
radiculopathy. Degenerative changes have, however,
been observed on MRI and radiographic studies.
(See Tr. 273.) Dr. McIntire concluded:
Given the radiographic results and present
examination, it may be worthwhile for this claimant to avoid tasks that require very
heavy labor, such as frequent lifting and carrying
of more than 50 Ib or frequent overhead lifting of
more than 30 Ib. The current examination does not
point to additional functional limitations.
(See Tr. 273.)
The ALJ also relied on the conclusions of two consulting physicians
from Disability Determination Services. (See Tr. 23.) Both of those
physicians separately found, in June and December 1998, that McCormick
was capable of performing activities consistent with light work.
(See Tr. 247-254, 333-340.)*fn4
4. The ALJ's reasons for rejecting Dr. Rushton's opinions
In rejecting Dr. Rushton's opinion that McCormick was unable to work,
the ALJ stated:
I do not credit Dr. Rushton's opinions, expressed
on several occasions that claimant is disabled
from all work. I find Dr. Rushton's pronouncements
of disability are not supported by the clinical
findings.*fn5 In addition, Dr. Rushton's
willingness to state that claimant's disability
`dates back at least 5 years,' despite the fact
that he first saw claimant in 1997 indicates a
lack of objectivity and that he is acting more as
an advocate rather than an objective treating
doctor. Further, Dr. Rushton's opinion that
claimant has been disabled `for some time,' in
part because If he were capable of working he
would be working,' suggests that his opinion is
inordinately based upon claimant's subjective
(See Tr. 23 (citations omitted).) The ALJ also stated that she
found Dr. McIntire to be "more objective" than Dr. Rushton, and thus
accorded more weight to his findings. (See Id.) The ALJ also credited the June and December 1998
opinions of the Disability Determination Services medical advisors that
McCormick had a residual functional capacity for light exertional work,
on the ground that they are "highly qualified physicians and experts in
the evaluation of medical issues in disability claims under the Act."
(See id. (citing SSR 96-6p). The ALJ also set forth a lengthy
recitation of McCormick's medical history. (See id. 18-22.)
The Court finds that the ALJ did not err in rejecting Dr. Rushton's
opinion because the ALJ set forth specific and legitimate reasons
supported by substantial evidence for disregarding Dr. Rushton's opinion.
Although Dr. Rushton treated McCormick for a substantial period of time,
and the record indicates that McCormick had various medically
documentable conditions, nothing in the medical record indicates that Dr.
Rushton had any basis for concluding that McCormick was unable to work
other than McCormick's own statements to him. In particular, Dr.
Rushton's records are devoid of any reference to any specific physical or
mental limitations that would preclude McCormick from working.*fn6 His
various letters stating that McCormick cannot work also fail to point to
any particular limitations caused by McCormick's medical conditions that
would prevent him from working, other than a general statement that
McCormick has "limited use of his right upper extremity."'
(See Tr. 314, 353; see also Tr. 317, 318.)
Accordingly, the ALJ did not err by rejecting Dr. Rushton's opinion that
McCormick was too disabled to work, because the ALJ provided specific and
legitimate reasons for doing so that are supported by substantial
evidence in the record. See Lester. 81 F.3d at 830. B. The ALJ Did Not Improperly Base Her Decision on Her Own
McCormick contends that the ALJ improperly substituted her own medical
opinion for that of the treating physician, Dr. Rushton. McCormick relies
on the following exchange between the ALJ and McCormick at the October 5,
1999 administrative hearing:
ALJ: And if you want to get something else from
[Dr. Rushton] I will certainly consider it. You
know, the problem that I see, and I'm just
speaking to you honestly, is that the MRI findings
that were described were not very substantial. I
read to you what they said.
ALJ: You may think that's extremely serious, but
I've read a lot of MRI reports, I'm not a doctor,
but I've evaluated a lot of MRI reports.
ALJ: And this says a lot of things that are not
extremely, extremely serious.
ALJ: So it's not clear, on the face of it, that
you're unable to do any kind of work just because
of this report.
ALJ: But certainly, you know, if your doctor wants
to interpret this and send me a letter about it,
I'm certainly willing to read that and consider
Clmt: Thank you.
(See Tr. 82-83.)
McCormick fails to cite to the portions of the transcript that precede
this exchange, which explain the purpose of the discussion:
ALJ: The problem is that no doctor has explained
what limitations may or may not be related to the
MRI results. . . . Well, he has said, in one or two
of his letters that he thinks you're not able to
work. But he hasn't really explained what he
thinks your limitations are. So if you want him to
clarify that, I'm certainly willing to consider
whatever he has to say. This is Dr. Rushton I'm
(See Tr. 80-81.) Read in context, the ALJ's remarks make
clear that the ALJ was concerned about Dr. Rushton's failure to explain
specifically how McCormick was limited as a result of his impairments and
thus, in Dr. Rushton's opinion, was precluded from being able to work. Rather than offering her own medical opinion, the ALJ
merely explained that the injuries described in the MRI reports were not
so obviously debilitating that she could infer disability without a
medical opinion from Dr. Rushton explaining what physical limitations
were caused by McCormick's medical condition that prevented him from
being able to work.
Accordingly, the plaintiff has not shown that the ALJ improperly based
her decision on her own medical opinion.
C. The ALJ Did Not Lack Substantial Evidence For Her
Conclusions as to McCormick's Limitations
McCormick argues that the ALJ lacked substantial evidence for finding
McCormick's daily activities supported the conclusion that McCormick was
not disabled. The ALJ made such a finding as part of her overall
determination of McCormick's credibility. (See Tr. 23-24.)
An ALJ cannot reject a claimant's subjective testimony "without making
findings sufficiently specific to permit the reviewing court to conclude
that the ALJ did not arbitrarily discredit the claimant's testimony."
See Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1994). Among
the factors the ALJ may consider in making a credibility determination
are the claimant's "ability to perform household chores, the lack of side
effects from prescribed medications, and the unexplained absence of
treatment for excessive pain." See id.
"[O]nce the claimant produces objective medical evidence of an
underlying impairment, the adjudicator may not reject a claimant's
subjective complaints based solely on a lack of objective medical
evidence to fully corroborate the alleged severity of pain." See
Bunnell v. Sullivan. 947 F.2d 341, 345 (9th Cir. 1991) (citing
Cotton v. Bowen. 799 F.2d 1403, 1407 (9th Cir. 1986)).
"[A]lthough an adjudicator may find the claimant's allegations of
severity to be not credible, the adjudicator must specifically make
findings which support this conclusion." See id. "These
findings, properly supported by the record, must be sufficiently
specific to allow a reviewing court to conclude the adjudicator
rejected the claimant's testimony on permissible grounds and did
not `arbitrarily discredit a claimant's testimony regarding pain.'" See id. at 345-46
(quoting Elam v. Railroad Retirement Bd., 921 F.2d 120, 1213-14
(11th Cir. 1991)). "[A] reviewing court should not be forced to speculate
as to the grounds for an adjudicator's rejection of a claimant's
allegations of disabling pain." See id. at 346. "General
findings are insufficient; rather the ALJ must identify what testimony is
not credible and what evidence undermines the claimant's complaints."
See tester. 81 F.3d at 834.
McCormick testified that he could lift 20 pounds occasionally, but
could not lift anything repetitively. (See Tr. 56.) He estimated that if
he had breaks every two hours, he could stand for a total of three hours,
for about thirty minutes at a time, (see Tr. 57), and further testified
that with medication, he could sit all day. (See Tr. 57.) He was unable
to estimate how much time he could spend walking in an eight-hour day,
partly because he had not yet fully recovered from his hernia surgery.
(See Tr. 58.) McCormick also testified that he could not perform his
prior work as a fast food manager. (See Tr. 67.) He felt that his health
was too unstable to allow him to adhere to a regular work schedule. (See
Tr 67-68.) The ALJ stated in her decision that she found McCormick's
testimony "not credible," for the following reasons:
His allegations regarding functional limitations
are not supported by the medical evidence.
Further, the fact that claimant is able to obtain
significant pain relief with Tylenol and Flexoril
indicates less severe orthopedic pain and greater
functional ability than claimant is willing to
acknowledge. I find claimant's considerable
activities of daily living including doing some
housework and cooking, going grocery shopping once
a week, haying full custody of his 12 year old son
and walking him to school daily, going rock
hunting, driving four miles ever Sunday and trying
to fix the roof of his house are indicative of a
greater functional ability than he is willing to
In addition, claimant's smiling and casual
demeanor at the hearing indicated that he was not
in severe pain. He had no limitations that could
be observed by a layman. In making these
observations, I am not basing my entire decision
or credibility assessment upon claimant's
appearance at the hearing. This is but one factor
which I have considered along with all the other
evidence of record. I do not find claimant's
testimony to be credible.
(See Tr. 23-24.)
McCormick contends that the ALJ erroneously summarized his testimony
with respect to his daily activities. McCormick testified before the ALJ
that, on a scale of one to ten, with ten being the worst pain imaginable, his headaches rated
a ten, but that he could reduce the pain with Tylenol to a five, and with
Flexeril to a one or two. (See Tr. 46.) He also testified that in the
previous six months, the headaches were greatly reduced in both severity
(a rating of three on a scale of ten) and frequency, occurring only
"[o]nce a week, maybe twice a month." (See Tr. 46-47.) He rated
his chest pain at eight on a scale of ten, but testified that he was not
prescribed any pain medication for it, and took no over the counter
remedies, although the pain had occurred daily since 1993. (See Tr.
48-49.) McCormick rated his back/shoulder pain at seven on a scale often,
occurring approximately three days a week and lasting all day, and stated
that Flexeril reduced the pain to a rating of two on a scale of ten.
(See Tr. 52-53.) McCormick rated the pain from his ulcers at
six on a scale of ten, but stated that he did not take any prescribed
pain medication for his ulcers. (See Tr. 54.) The ALJ's
statement that McCormick's pain is greatly reduced by medication thus is
supported by substantial evidence.
As to McCormick's daily activities, he testified that he can get
dressed and take care of his grooming to "a limited extent," although he
does not "groom or dress to go anywhere." (See Tr. 63.) He performs
household chores such as "[t]aking out the garbage, sweeping the big
stuff up off the floor, pulling the blankets over [his] sheets," and
doing laundry. (See Tr. 63, 67.) He has "done cooking" since
August 1993. (See Tr. 63-64.) He goes shopping for groceries
once a week. (See Tr. 64.) McCormick testified that he walks daily, and
although the amount of his walking had decreased over time, he felt that
his recent hernia operation would allow him to walk more frequently.
(See. Tr. 65.) He has spent much of his time since 1993 "rock hounding"
by "walking . . . at the river," although that became "harder and
harder to do," and he had stopped doing it as of the time of the hearing.
(See Tr. 66.) McCormick testified that he had not done much
repair or maintenance work at his mother's property, but he has "tried to
keep her roof from leaking." (See Tr. 66-67.) McCormick also testified
that he had had full custody of his son for approximately a year prior to
the October 5, 1999 hearing, and that he drove his son to school every
morning, a distance of approximately four miles. (See Tr.
40-41, 65, 67.) McCormick correctly points out that the ALJ misstated his testimony in
that he never testified that he drives four miles every Sunday;
nonetheless, McCormick did testify that he drove his son to school every
day, a distance of four miles, which involves more exertion than the
weekly drive mentioned by the ALJ. (See Tr. 67.) Although he did not
testify that he walked his son to school every day, he did testify that
he walked every day. (See Tr. 65.) Although McCormick testified that he
had stopped going to the river to go "rock hounding/' he also testified
that he felt that his hernia operation would allow him to walk more
frequently again. (See Tr. 65, 66.) The remainder of the ALJ's
statements are entirely accurate.
Consequently, although the ALJ misstated some portions of McCormick's
testimony, her summary of his stated activities was largely correct and
was supported by substantial evidence. Moreover, the ALJ did not err by
concluding, based on the totality of the evidence, in particular, the
lack of any specified functional limitations in the medical record, the
lack of medication prescribed for chest and ulcer pain, and the
substantial reduction in his headache pain and back/shoulder pain when he
took Tylenol or Flexeril, that McCormick was overstating the amount of
pain that he felt. The ALJ set forth specific findings in support of that
conclusion, and although other finders of fact might have come to
different conclusions, the ALJ's conclusions were supported by
substantial evidence. See Andrews v. Shalala. 53 F.3d 1035,
1039-40 (9th Cir. 1995) (holding ALJ's decision must be upheld "where the
evidence is susceptible to more than one rational interpretation").
Accordingly, the Court finds the ALJ did not err in rejecting
McCormick's testimony about his limitations and the degree of pain he
suffers as a result of his impairments.
D. The ALJ Did Not Err By Concluding McCormick's Past Work as a
Fast Food Manager Was Substantial Gainful Activity
The ALJ concluded that McCormick could perform his past relevant work
as a fast food manager, and that, accordingly, he was not disabled within
the meaning of the Act. (See Tr. 24.) McCormick argues that the
ALJ's conclusion that he is not disabled because he could perform his past work as a fast food manager is erroneous
as a matter of law because his past work was not substantial gainful
employment as defined under 20 C.F.R. § 404.1573(c)(5-6) and
416.973(c)(5-6). Specifically, McCormick asserts that his performance was
substandard, and that he was only employed because the fast food
restaurant was family-owned.
The Social Security regulations provide that an applicant's work will
not be considered to be "substantial gainful activity" if the work is
performed "under special conditions" that "take into account [the
applicant's] impairment." See 20 C.F.R. § 404.1573(c),
416.973(c). Examples of such "special conditions" include the applicant's
being permitted to work "at a lower standard of productivity because of
family relationship" and being "given the opportunity to work despite
[the applicant's] impairment because of family relationship."
See 20 C.F.R. § 404.1573(c)(5-6), 416.973(c)(5-6).
From 1988 to 1990, McCormick worked as a fast food manager at a Mr.
Frosty's restaurant owned by his parents. (See Tr. 36, 149, 376.)
McCormick's mother, Ann Wood, attested:
We made allowances for Richard because he was our
son, and we would not have put up with anyone else
with his attitude. . . . If he had not been our son,
we would never have kept him on as an employee.
Eventually, though he was our son, we asked him to
leave because the other night shift employees were
very unhappy and were threatening to quit if
Richard! returned. We also had some complaints
from customers about his attitude.
(See Tr. 376.) McCormick alleges that because he was
given special consideration by his mother, the ALJ erred in finding that
his past work as a fast food manager was substantial gainful activity.
Although the record indicates that McCormick's mother gave him more
leeway in his employment as a fast food manager than she would have given
a non-family member in the same position, nothing in the record suggests
that those "special conditions" of his employment were because of his
severe impairments. Nothing in the record suggests that McCormick had any
physical difficulties performing his work as a fast food manager. Indeed,
the job ended in 1990, three years before his current physical problems
began to manifest themselves. Moreover, there is no evidence that McCormick
had a psychological impairment at that time that precluded him from
working as a fast food manager. Although McCormick may had a "bad
attitude," nothing in the record suggests that a severe impairment of a
psychological nature was the cause of it. Indeed, Stephan Lampe, M.D.
conducted a comprehensive psychiatric examination of McCormick and found
that McCormick could withstand the stress of an eight-hour work day. (See
Tr. 242.) Because the evidence does not show that McCormick was given
special consideration during his employment as a fast food manager due to
any physical or mental impairments, §§ 404.1573 and 416.973 have no
Accordingly, the ALJ did not err by concluding that McCormick's past
work as a fast food manager constituted substantial gainful employment.
E. The ALJ Did Not Fail to Fully Develop the Record
McCormick appeared at the administrative hearing without the assistance
of counsel. In McCormick's reply brief, he contends, for the first time,
that the ALJ erred by not conducting the hearing in a manner designed to
elicit all McCormick's pertinent testimony and evidence regarding his
"Lack of counsel does not affect the validity of the hearing and hence
warrant remand, unless the claimant can demonstrate prejudice or
unfairness in the administrative proceedings." Vidal v. Harris.
637 F.2d 710, 714 (9th Cir. 1981). In Cox v. Califano, 587 F.2d 988
(9th Cir. 1978), the Ninth Circuit held that where a claimant is not
represented by counsel, "it is incumbent upon the ALJ to scrupulously and
conscientiously probe into, inquire of, and explore for all the relevant
facts." See id at 991. (internal quotation and citation
omitted). In such a situation, the ALJ "must be especially diligent in
ensuring that favorable as well as unfavorable facts and circumstances
are elicited." See id. (internal quotation omitted). "[T]he issue is not whether the right to
representation was knowingly waived, rather, it is whether, in the
absence of representation, the administrative law judge met the heavy
burden imposed by Cox." See Vidal. 637 F.2d at 714.
In Cox, the Ninth Circuit remanded the action for further
proceedings after concluding that the plaintiff had been prejudiced by
his lack of representation during the hearing before the ALJ. See
Cox. 587 F.2d at 991. There, the ALJ interpreted a letter written by
the Plaintiff's treating physician, which letter indicated that the
plaintiff was unlikely to return to his past relevant work and advised
the plaintiff to begin vocational rehabilitation, as a medical opinion
that the plaintiff could in fact return to work. See id. at
990-91. Relying on a vocational expert's testimony that if the plaintiff
was able to "engage in a sustained daily work routine," there existed
certain jobs that plaintiff could perform, the ALJ found the plaintiff
was not disabled. See id. at 990. The Ninth Circuit held that
the ALJ appeared to have misunderstood the treating physician's letter,
and that "[h]ad plaintiff been represented by counsel at the
administrative hearing, it is likely that the ALJ's misunderstanding of
both the physician's letter and the testimony of the vocational expert
would have been clarified." See id. at 991. The Ninth Circuit
observed that the ALJ "made no effort to, and gave plaintiff little
opportunity to, elaborate further on [the] crucial question" of the
meaning of the treating physician's letter. See id.
Similarly, in Vidal. the Ninth Circuit held that where an
unrepresented plaintiff establishes prejudice from lack of
representation, he is entitled to a remand for further proceedings.
See Vidal. 637 F.2d at 713-15. There, the ALJ found that the
plaintiff had a learning disability and that he could not perform his
past relevant work, but, in reliance on the testimony of a vocational
expert, found that the plaintiff could perform certain other jobs. The
Ninth Circuit held that the testimony of the vocational expert was
insufficient to support the ALJ's finding because the vocational expert
did not "provide convincing evidence that [the plaintiff] was qualified
for the [other] positions." See id. at 713. In particular, the Ninth
Circuit observed that the ALJ "did not adequately probe whether an
individual with [the Plaintiff's] learning disability would be considered
eligible to apply for those jobs." See id. at 714. As a result, "[the
Plaintiff's] case was clearly prejudiced by the inadequate examination of
the vocational expert" as it was clear from the record that the plaintiff
"was totally incapable of challenging the vocational expert's
conclusions." See id. The court concluded that "[h]ad the
claimant been represented by counsel at the hearing, it is likely that
cross-examination of the vocational expert would have revealed" relevant
information as to whether plaintiff was in fact qualified to perform the
other jobs. See id ln the instant case, McCormick argues that
the ALJ failed to adequately develop the record by failing to seek
additional information from Dr. Rushton about McCormick's specific
limitations or by explaining to McCormick what was needed. As explained
above, however, the ALJ did explain to McCormick what she felt was
missing from the record. (See Tr. 80-83.) Indeed, the ALJ ended the
hearing by inquiring whether McCormick wanted to "ask Dr. Rushton to give
[plaintiff] another letter." (See Tr. 92.) McCormick responded,
"I don't see  what more I can get from him, I really don't." (See
Accordingly, the Court finds the ALJ did not fail to fully and fairly
develop the record.
For the reasons stated above:
1. Plaintiff's motion for summary judgment is hereby DENIED.
2. Defendant's cross-motion for summary judgement is hereby GRANTED and
the decision of the Commissioner is hereby AFFIRMED.
The Clerk shall close the file and terminate all pending motions.
IT IS SO ORDERED.