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April 6, 2004.

JO ANNE B. BARNHART, Commissioner of Social Security, Defendant

The opinion of the court was delivered by: MAXINE CHESNEY, District Judge

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).


  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 ...

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