The opinion of the court was delivered by: MARTIN JENKINS, District Judge
ORDER GRANTING DEFENDANT'S
CROSS MOTION FOR SUMMARY
JUDGMENT AND DENYING
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
Before the Court are cross-motions for summary judgment with respect to
whether Catherine Keach is entitled disability benefits from Jo Anne B.
Barnhart, Commissioner of Social Security. These motions require the
Court to review the Administrative Law Judge's decision to deny benefits.
For the reasons set forth below, the Court GRANTS Defendant's motion and
DENIES Plaintiff's motion.
On March 31, 1998, Plaintiff filed an application for Disability
Insurance Benefits ("DIB"), under Title II of the Social Security Act,
and Supplemental Security Income, under Title XVI of the Social Security
Act, alleging that she became unable to work on August 11, 1997. The
Social Security Administration denied Plaintiff's application twice,
initially and upon reconsideration. After two hearings, Administrative
Law Judge Bratchen Rogozen ("ALJ") also denied Plaintiff's application. The decision became final when the Appeals Council
denied Plaintiff's request for review on September 21, 2001. Plaintiff
then filed this request for judicial review pursuant to 42 U.S.C. § 405
(g). Plaintiff alleges that the ALJ's decision is not supported by
substantial evidence, that the ALJ committed legal error by incorrectly
assessing Plaintiff's credibility, and that the ALJ failed to adequately
develop the record.
On August 11, 1997, while riding on a bus, Plaintiff was injured when
the bus was involved in an accident. Plaintiff was initially treated for
neck and back pain at Doctors on Duty after the bus accident on August
11, 1997. Later in August 1997, the Emeline Street Clinic in Santa Cruz
diagnosed Plaintiff with cervical strain and lumber strain. In September
1997, the Palo Alto Veterans' Administration ("VA") evaluated Plaintiff's
condition. The VA prescribed the use of a cervical collar and
non-prescription pain medication. Plaintiff was referred to physical
therapy for two consecutive courses of treatment. In December 1997,
Plaintiff reported that she felt substantially better, until coming down
with bronchitis, her headaches had decreased in frequency, and the
combination of physical therapy and chiropractic treatment left her "much
improved." In January 1998, Plaintiff was released from physical therapy.
From June 1998 through August 1998, Plaintiff was treated for foot pain.
Plaintiff's file indicated only one apparent psychiatric diagnosis,
dysthymia. However, Plaintiff refused both counseling and assessment for
medication based on potential mental impairment. In June 1998, Plaintiff
reported to the Social Security Administration that she did not allege
any psychological disability.
Plaintiff attended classes at Cabrillo College after the accident.*fn1
In January 1998, Samina Igbal, M.D., physician at the San Jose Clinic
of the Veteran's Administration, determined that Plaintiff could not lift
more than twenty pounds. (Tr. 216). In May 1999, Clarke E. Gable, M.D.,
consulting physician for the Disability Determination Service ("DDS"),
examined Plaintiff. He diagnosed Plaintiff with headaches compatible with
muscle tension and marked exogenous obesity. He noted that Plaintiff's subjective
complaints were not substantiated by objective findings. Dr. Gable opined
that Plaintiff could sit for two hour periods with the usual breaks;
stand for one hour at a time, repetitively, through the day; walk for two
blocks with no difficulty; occasionally lift and carry twenty pounds; and
frequently lift and carry ten pounds. (Tr. 24).
Plaintiff testified at two hearings before the ALJ, July 7, 1999 and
October 28, 1999. Plaintiff testified that she had pain all over her
body; experienced headaches two or three times a week; used ibuprofen for
pain; and continued to receive acupuncture, reflexology, and chiropractic
treatment. Plaintiff testified that she could walk for five or ten
minutes, sit for one hour, and stand for ten to fifteen minutes.
Plaintiff claimed that lying down was the only source of relief.
The ALJ's findings included the following: Plaintiff met the disability
insured status from August 11, 1997 through September 30, 1998; the
medical evidence established severe impairments which did not meet the
criteria of impairments under Social Security Administration regulations;
and that Plaintiff's "statements concerning her impairments and their
impact on her ability to work are not entirely credible in light of the
degree of medical treatment required, the reports of the treating and
examining practitioners, and the findings made on examination." (Tr. 27).
The ALJ found that Plaintiff could stand for one hour at a time,
repetitively, through the work day; sit for two hour periods with the
usual breaks; and lift and carry up to twenty pounds.
The ALJ noted that he gave little weight to medical opinions not
substantiated by objective medical laboratory tests and clinical findings
including those from Plaintiff's chiropractors. The ALJ considered the
five-step sequential evaluation process for disability determinations and
found that Plaintiff was not disabled. The ALJ relied on Plaintiff's
medical records, daily activities, and effects of symptoms. The ALJ
determined that Plaintiff's impairments prevented her from performing her
past jobs, but she was able to perform other jobs in the national economy
including food service host or front desk clerk.
Summary judgment is appropriate if there are no genuine issues as to
any material fact and the moving party is entitled to judgment as a
matter of law. Fed.R.Civ.P. 56(c). The Court may disturb the Commissioner's final decision "only if it is based on
legal error or if the fact findings are not supported by substantial
evidence." Sprague v. Bowen, 812 F.2d 1226, 1229 (9th Cir.
1987); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).
Substantial evidence is more than a mere scintilla, but less than a
preponderance. See Magallanes v. Bowen, 881 F.2d 747, 750 (9th
Cir. 1989); Orteza v. Shalala, 47 Soc. Sec. Rep. Serv. 268 (9th
Cir. 1995). "[C]onsidering the entire record, [substantial evidence] 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). Determinations of credibility, resolution of conflicts
in medical testimony and all other ambiguities are to be resolved by the
ALJ. Magallanes, 881 F.2d at 750. The decision of the ALJ will
be upheld if the evidence is "susceptible to more than one rational
interpretation." Andrews v. Shalala, 53 F.3d 1035, 1040 (9th
To qualify for Title II and Title XVI benefits, a claimant must
establish a medically determinable physical or mental impairment that is
expected to result in death or last for a continuous period of at least
twelve months that prevents him from engaging in substantial gainful
activity. 42 U.S.C. § 423(d)(1)(A); see also Gallant v.
Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984). To be determined to be
under a disability, an individual "must show that he is precluded from
engaging not only in his `previous work,' but also from performing `any