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United States District Court, N.D. California

April 9, 2004.


The opinion of the court was delivered by: MARTIN JENKINS, District Judge

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 (Tr. 76-78).

  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 Cir. 1995).

  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); §§ 404.920(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), 416.929(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 complaints.

  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.


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