United States District Court, N.D. California
April 9, 2004.
CATHERINE KEACH, Plaintiff;
JO ANNE B. BARNHART, Defendant
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
other kind of substantial gainful work that exists in the national
economy.'" Matthews, 10 F.3d at 680;
42 U.S.C. § 423(d)(2)(A) and 1382c(a)(3)(B).
A. The ALJ's Decision
To determine whether a claimant is disabled and entitled to benefits,
an ALJ conducts a five-step sequential inquiry. 20 C.F.R. § 404.1520;
20 C.F.R. § 416.920. Under the first step, the ALJ considers whether
the claimant currently works in substantial gainful activity. If not, the
second step asks whether the claimant has a severe impairment. In step
three, the ALJ determines whether the claimant has a condition which
meets or equals the conditions outlined in the Listings of Impairments in
Appendix 1, Subpart P, Regulations No. 4. 20 C.F.R. § 404.1520. If
the claimant does not have such a condition, step four asks whether the
claimant can perform her past relevant work. If not, in step five, the ALJ considers whether the claimant
has the ability to perform other work which exists in substantial numbers
in the national economy. 20 C.F.R. § 404.1520(b)-(f); §§
The ALJ ultimately found Plaintiff not disabled. The ALJ determined
that plaintiff had not engaged in substantial gainful activity since
January 1996. (Tr. 27). The ALJ found that although Plaintiff has severe
impairments including obesity, headaches, and pain in the neck, back, and
knees, the impairments do not meet or equal the Listings of Impairments.
Id. The ALJ also found that Plaintiff is unable to perform her
past relevant work. However, the ALJ determined that Plaintiff is
"capable of making an adjustment to work which exists in significant
numbers in the national economy" including "food service host or as a
front desk clerk." (Tr. 28).
B. Substantial Evidence
Plaintiff challenges the ALJ's determination that she was capable of
performing light work. The Court may only disturb this decision if
Plaintiff establishes that the ALJ's decision was not based on
substantial evidence or that the decision was based on legal error.
Andrew, 53 F.3d at 1039. To determine whether a claimant is
disabled, the ALJ must consider all symptoms, including pain, and the
description of how the symptoms affect the claimant's daily activities
and ability to work. 20 C.F.R. § 404.1529, 416.929. The ALJ must
consider all functional limitations and restrictions presented in the
evidence. Relevant factors include: (1) daily activities; (2) the
location, duration, frequency, and intensity of the pain; (3)
precipitating and aggravating factors; (4) the type, dosage,
effectiveness, and side effects of any medication taken to alleviate the
pain; (5) treatment, other than medication; (6) any other measures used
to relieve the pain; and (7) other factors concerning functional
limitations or restrictions due to pain. 20 C.F.R. § 404.1529(c)(3),
Substantial evidence in the record supports the ALJ's decision to deny
Plaintiff's application. The ALJ reviewed Plaintiff's medical history,
medical signs and laboratory findings, effects of treatment, daily
activities, medical source statements, and effects of symptoms, including
pain. The ALJ analyzed Plaintiff's treatment records and medical evidence
including her orthopedic evaluation by a medical consultative examiner
and the reports of state agency physicians. The ALJ properly determined that none of Plaintiff's treating
physicians' opinions of functional limitations support a finding of
disability under the social security regulations. (Tr. 24). For example,
Dr. Igbal opined Plaintiff was disabled and unable to lift more than
twenty pounds. (Tr. 216). This weight restriction does not fit into the
disabling range under the social security regulations.
20 C.F.R. § 404.1567(b), 416.967(b). Additionally, the ALJ adopted the
functional assessment of the state agency physician, Dr. Gable, who assessed
Plaintiff.*fn2 Dr. Gable found that Plaintiff could sit for two hours
and stand for one hour repetitively throughout the day. The ALJ
considered these assessments when framing Plaintiff's capability for
work. The ALJ did not consider Plaintiff's chiropractor's opinions
because chiropractors are not recognized as "acceptable medical sources."
20 C.F.R. § 404.1513(d), 416.913(d). The ALJ decision is free from
legal error because he gave specific and legitimate reasons each time he
rejected evidence such as the chiropractor's opinions.
Additional evidence supports the conclusion that Plaintiff is capable
of maintaining her daily activities. Despite her complaints regarding
multiple symptoms, Plaintiff takes over-the-counter, ibuprofen for the
pain. No doctors prescribed any medication other than ibuprofen, and no
doctor recommended surgery. In fact, Plaintiff's doctors only recommended
conservative treatment, such as physical therapy and acupuncture. Also,
Plaintiff admits that she attended Cabrillo College part-time after her
injury. (Tr. 76-78).
Although Plaintiff has some limitations, her medical records indicate a
mild degenerative condition that can be effectively treated with
conservative therapy. The ALJ correctly analyzed Plaintiff's allegations
of pain and limitations as well as their impact on her daily activities
and ability to work. The Court will not disturb the ALJ's decision
because it is supported by substantial evidence.
C. Plaintiff's Credibility
Plaintiff argues that the ALJ committed an error of law by improperly
assessing her credibility regarding her subjective complaints of pain.
Plaintiff alleges that the ALJ failed to provide specific reasons and evidence to discredit her subjective
The ALJ may not disregard statements about the intensity and
persistence of pain or other symptoms because they are not substantiated
by medical evidence. Social Security Ruling 96-7p. However, the ALJ
determines credibility, Andrews, 53 F.3d at 1043, and may
disregard self-serving statements made by claimants if he finds them to
be unsupported by objective evidence. See Rashad v. Sullivan,
903 F.2d 1229, 1231 (9th Cir. 1990). Where the ALJ has made specific
findings to justify a decision to disbelieve plaintiff's testimony, and
substantial evidence supports those findings, this Court may not
second-guess that decision. See Fair v. Bowen, 885 F.2d 597, 604
(9th Cir. 1989).
To assess the plaintiff's credibility regarding allegations of
disabling pain, the ALJ may consider factors including: inconsistencies
in the plaintiff's testimony, plaintiff's daily activities, an
unexplained or inadequately explained failure to seek treatment or follow
a prescribed course of treatment, or other ordinary methods of
credibility determination. See Bunnell v. Sullivan 947 F.2d 341,
346 (9th Cir. 1991); Matthews, 10 F.3d at 679-80. The ALJ
determination "must contain specific reasons for the finding on
credibility, supported by evidence in the case record, and must be
sufficiently specific to make clear" to others the weight the ALJ gave to
the applicant's statements regarding pain. Social Security Ruling 96-7p.
Here, the ALJ specifically considered the relevant factors and
identified evidence which suggests inconsistency between Plaintiff's
testimony and the objective medical evidence. For example, Plaintiff
testifies she has sustained several severe symptoms after the injury.
However, she takes ibuprofen for pain as her only medication, and she
only receives conservative therapies for treatment. Plaintiff alleges
that she is only capable of sitting for one hour and standing for ten to
fifteen minutes while her physician suggested she could sit for two hours
and stand for one hour, repetitively throughout the day. (Tr. 25).
The ALJ also determined that Plaintiff was less than fully credible
because her daily activities suggest a greater functional capacity than
Plaintiff admits. The fact that Plaintiff attended college after her
injury despite her complaint of severe pain supports this determination.
Additionally, on Plaintiff's Daily Activity Questionnaire she indicated
that she prepares and cooks her own meals. (Tr. 145). In a similar case, the Ninth Circuit
upheld the ALJ's finding that the plaintiff's allegations of disabling
pain were inconsistent with the weight of the evidence. See
Fair, 885 F.2d at 604-605. In Fair, the plaintiff alleged
severe pain and discomfort, but received minimal conservative treatment
at the same time. Id. Although the plaintiff testified that he
was confined to resting in his home, he also testified that he remained
capable of caring for his own personal needs, such as shopping for
groceries. Id. Here, Plaintiff took care of herself and even
attended classes at a college. Like the claimant in Fair,
Plaintiff only receives conservative treatments. Therefore, the
Fair holding is compelling in this case.
In conclusion, the ALJ made specific findings before discounting
Plaintiff's subjective complaints of disabling pain. The ALJ did not
completely disregard Plaintiff's statements. The ALJ found that objective
medical evidence did not support Plaintiff's subjective complaints, and
Plaintiff's daily activities suggested an ability to perform light work.
The ALJ's determination was not legal error.
D. Plaintiff's Record
Plaintiff challenges the ALJ's decision to disregard Plaintiff's
alleged psychological impairments in making his finding, arguing that the
ALJ did not fully develop the record. This argument has no merit.
After the injury, Plaintiff initially reported depression and possible
post-traumatic stress syndrome. (Tr. 133). The DDS scheduled a
consultative psychological examination for Plaintiff on June 7, 1998.
(Tr. 157). Plaintiff returned the form indicating that she would not
attend the consultative examination because her "file was based on
physical impairment not psychological." (Tr. 157). Plaintiff also
consistently refused any referrals for psychiatric care. (Tr. 249, 257,
259, 349, 356-357, 359, 360, 365). Additionally, Plaintiff did not
present any behavior to indicate mental impairment at either of the two
hearings before the ALJ.
Plaintiff argues that she did go to a VA mental health counselor for
evaluation and requested a discussion regarding the impact of the bus
accident on her life. (Tr. 259). Plaintiff decided not to continue this
therapy because the counselor wanted to discuss her sexual orientation
and obesity in relation to employment instead of the impact that the bus
accident had on her life. (Response, 4). However, Plaintiff could have gone to other psychiatrists for help
or emphasize her needs to the VA psychiatrist. Additionally, Plaintiff's
explanation is inconsistent with her prior position that her application
was based on physical impairment only. Finally, according to the relevant
regulations, an individual who refuses to attend a consultative
examination may, as a consequence, be found not disabled.
20 C.F.R. § 404.1518(a), 416.918(a).
This Court finds that the ALJ fulfilled his obligation to fully develop
the record. The ALJ was correct to disregard Plaintiff's alleged
psychological impairments because Plaintiff neither provided any
psychiatric evaluations nor received any psychological treatments.
For the foregoing reasons, the Court GRANTS Defendant's
cross-motion for summary judgment and DENIES Plaintiff's motion
for summary judgment.
IT IS SO ORDERED.