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KEACH v. BARNHART

April 9, 2004.

CATHERINE KEACH, Plaintiff;
v.
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
INTRODUCTION
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.

PROCEDURAL HISTORY

  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.

  FACTUAL BACKGROUND

  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.

  LEGAL STANDARD

  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 ...


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