United States District Court, N.D. California
May 28, 2004.
JOHN C CHU, Plaintiff
JOANNE B BARNHART, Commissioner of the Social Security Administration, Defendant
The opinion of the court was delivered by: VAUGHN WALKER, District Judge
Plaintiff appeals from the decision of the administrative law judge
("ALJ") denying plaintiff social security disability benefits. The court
now considers cross motions for summary judgment. Pl Mot (Doc # 12); Def
Mot (Doc # 16). Based upon review of the administrative record, the court
DENIES plaintiff's motion and GRANTS defendant's motion. I
Plaintiff was fifty-eight years old on October 1, 1997, the date of the
disability onset he alleges. Administrative Record ("AR") (Doc #10) at
19. Plaintiff has a master of arts degree in physics and past relevant
work experience as a computer technician. AR at 20-21, 69. Plaintiff
reported that he frequently lifted twenty-five pounds in his past work.
AR at 69. Plaintiff stopped working on October 1, 1997. AR at 68.
According to plaintiff, he has arthritis in his back and knees, a
surgically-removed fingernail, wrist injuries, an inability to move his
right shoulder and a heart problem. AR at 27-28, 30. Plaintiff also
states that he had trouble climbing stairs and moving his shoulder. AR at
In connection with the health problems plaintiff describes, he was
examined by two medical experts. First, plaintiff was examined by Dr
Suzanne Stone for an internal medicine consultation on December 30, 1999.
AR at 157-163. Dr Stone diagnosed plaintiff with chronic lumbar strain,
adequately controlled hypertension, history of pulmonary tuberculosis
without known recurrence, exogenous obesity, surgically-removed left
fourth fingernail and moderate chronic depression. AR at 159. Dr Stone
concluded that plaintiff was restricted to lifting or carrying ten pounds
frequently, lifting or carrying twenty pounds occasionally, standing or
walking two to four hours and sitting six hours continuously with
adequate breaks. AR at 159-60. Dr Stone further concluded that plaintiff
had moderate exertional limitations on climbing, stooping, kneeling,
pushing, balancing, crouching, crawling and pulling. AR. Dr Stone based her opinions on a physical
examination of plaintiff and review of plaintiff's pain questionnaire. AR
Plaintiff subsequently was evaluated by Dr Jonathan Howard, a licensed
psychologist, on February 11, 2000. AR at 185-188. Dr Howard noted his
diagnostic impressions of plaintiff, including, "[d]epressive and anxious
features * * *; [c]onsider [a]djustment [d]isorder; [c]onsider [p]hase of
[l]ife [p]roblems." AR at 187. Dr Howard concluded that plaintiff may
have difficulty dealing with normal stresses of work and interacting with
coworkers and the public. AR at 187-188. Dr Howard also concluded that
plaintiff would not have difficulty performing simple repetitive
activities, accepting instructions from supervisors or maintaining work
attendance. AR at 188. Dr Howard based his opinions on plaintiff's
self-reported information, intelligence test performance, clinical
examination and review of medical records. AR at 187.
The reports of Dr Stone and Dr Howard were reviewed by state agency
physicians and psychiatrists. AR at 164-171, 189-206. These doctors did
not examine plaintiff. The non-examining psychiatrists separately opined
that although plaintiff had affective and anxiety-related disorders, the
impairments were not severe. AR at 189, 198. The non-examining physicians
concluded that plaintiff had only some exertional limitations. AR at 165.
Plaintiff filed an application for supplemental security income under
Title II of the Social Security Act ("the Act") on October 14, 1999, and an application for social security disability
benefits under Title XVI of the Act on October 18, 1999. AR (Doc # 10) at
46-48, 217-219. Plaintiff was denied benefits on March 8, 2000, and filed
a request for reconsideration on April 5, 2000. AR at 34-39. The request
was granted, but plaintiff again was denied benefits on June 1, 2000. AR
at 40-43. Plaintiff requested a hearing to review the decision denying
him benefits on June 7, 2000. AR at 44-45.
The ALJ held a hearing on January 4, 2001, in which plaintiff testified
that he was disabled due to shoulder, back and knee pain. AR at 17. On
January 23, 2001, the ALJ denied benefits to plaintiff based on the
evidence presented at the hearing, including the reports from Dr Stone,
Dr Howard, the non-examining medical experts, plaintiff's testimony and
other medical records. AR at 11-16.
To determine whether plaintiff was entitled to benefits, the ALJ
conducted a five-step sequential evaluation of plaintiff's disability,
which considered the following questions: (1) was plaintiff currently
engaged in substantial activity; (2) did plaintiff have a severe
impairment or a combination of impairments; (3) if plaintiff had a severe
impairment, did plaintiff have a condition which meets or equals the
conditions outlined in the Listing of Impairments, 20 C.F.R. § 404, Pt
404, Subpt P, App. 1; (4) if plaintiff did not have such a condition, was
plaintiff capable of performing his past work; and (5) did plaintiff have
the residual functioning capacity to perform any other work.
20 C.F.R. § 404.1520.
Applying the five-step sequential evaluation to plaintiff, the ALJ specifically found that: (1) plaintiff met the
nondisability requirements for a period of disability and had not engaged
in substantial gainful activity since October 1, 1997; (2) plaintiff had
impairments or combination of impairments considered severe; (3) the
impairments did not meet one of the impairments in the Listing of
Impairments; (4) plaintiff's allegations regarding his limitations were
not totally credible; (5) careful consideration was given to the medical
opinions regarding the severity of plaintiff's impairments; (6) plaintiff
had the residual functional capacity for medium work activity with
lifting and/or carrying limited to fifty pounds occasionally and
twenty-five pounds frequently; (7) based on plaintiff's residual
functional capacity, plaintiff could perform his past relevant work as a
computer technician; and (8) plaintiff was not under a disability as
defined in the Act at any time through the date of the decision. AR at
15. Ultimately, the ALJ determined that, while plaintiff had the severe
impairments of chronic lumbar strain and Bowen's disease of the left
fourth finger, plaintiff was able to perform his past relevant work as a
computer technician based on his residual functional capacity to lift
and/or carry fifty pounds occasionally and twenty-five pounds frequently.
AR at 15.
Plaintiff appealed to the Social Security Administration's ("SSA")
appeals council on March 12, 2001. AR at 6-16. On May 7, 2001, the
appeals council denied plaintiff's request for review, and the ALJ's
decision became final. AR at 4-5. On June 29, 2001, plaintiff commenced
the instant action for judicial review of the final decision. Compl (Doc
Plaintiff alleges that he is disabled and unable to work because of back, knee and shoulder pain and limitations, as well as
depressive and anxious features. AR at 12-14. Plaintiff contends that the
final decision of the ALJ is in error because the ALJ gave greater weight
to the opinions of non-examining medical experts over examining medical
experts. Pl Mot (Doc # 12).
The court's jurisdiction is limited to determining whether the SSA's
denial of benefits is supported by substantial evidence in the
administrative record. 42 U.S.C. § 405(g). A district court may overturn
a decision to deny benefits only if the decision is not supported by
substantial evidence or if the decision is based on legal error. See
Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir 1995);
Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir 1989). The Ninth
Circuit defines "substantial evidence" as "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, 53 F.3d at 1039. Determinations of credibility,
resolution of conflicts in medical testimony and all other ambiguities
are to be resolved by the ALJ. See id; 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, 53 F.3d at 1040.
The Act provides that certain individuals who are disabled shall
receive disability benefits. 42 U.S.C. § 423(a)(1)(D). Disability is the "inability to do any substantial gainful activity
by reason of any medically determinable physical or mental impairment
which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12 months."
42 U.S.C. § 423(d)(2)(A). An individual will be found disabled if his
impairments are such "that he is not only unable to do his previous work
but cannot, considering his age, education, and work experience, engage
in any other kind of substantial gainful work which exists in the
national economy * * *." Id.
Plaintiff contends that he is disabled under the Act and that the ALJ
erred by giving greater weight to the opinions of the non-examining
medical experts instead of the opinions of the examining medical experts.
Pl Mot (Doc # 12). Although the opinions of examining medical experts are
normally entitled to greater weight than the opinions of non-examining
medical experts, the ALJ may still rely on the non-examining expert's
opinion. Andrews, 53 F.3d at 1037. Further, the ALJ can reject
the opinions of examining, non-treating physicians, in favor of
non-examining, non-treating physicians, if the ALJ provides specific,
legitimate reasons for so doing and those reasons are supported by
substantial evidence. Id.
Plaintiff first alleges that the ALJ erred in giving greater weight to
the non-examining psychiatrists' opinions than to the opinions of the examining psychiatrist, Dr Howard. The ALJ,
however, provided specific and legitimate reasons for discounting Dr
Howard's opinions. The ALJ states that Dr Howard's opinion "merits little
weight, as it is not compatible with the examination in view of the high
average range of intelligence and normal memory, attention,
concentration, insight, and judgment." AR at 14. The ALJ reasoned that Dr
Howard's opinion that plaintiff "may" have difficulty dealing with normal
work stress and interacting with coworkers and the public is not
supported by the results of Dr Howard's examination. AR at 14. The ALJ
made specific references to Dr Howard's report and provided reasons for
affording the report little weight.
The ALJ's decision to afford little weight to Dr Howard's opinion is
supported by substantial evidence. The findings from plaintiff's
intelligence test and the clinical examination provide little support for
Dr Howard's opinion that plaintiff "may" have difficulties handling
stress or interacting with others. Plaintiff exhibited normal memory and
concentration, was fully alert and oriented and was cooperative during
the evaluation. AR at 186. Dr Howard further stated that there is no
psychological basis for plaintiff to have difficulties dealing with
supervision, maintaining regular attendance or performing simple tasks.
AR at 187-188. The ALJ reasonably determined that the results of the
examination did not support Dr Howard's findings.
Further, the ALJ pointed out that plaintiff denied receiving mental
health or psychiatric treatment prior to the February 11, 2000,
examination. AR at 14. Plaintiff provided no other evidence that he had
severe mental impairments during the relevant time period. The lack of evidence of severe mental
impairments prior to the February 11, 2000, examination, combined with Dr
Howard's inconsistent findings, supports the ALJ's conclusion that
plaintiff did not have a severe mental impairment.
Moreover, even if the ALJ accepted Dr Howard's opinion regarding
plaintiff's limitations, the limitations do not satisfy the Act's
definition of a severe impairment. 20 C.F.R. § 404.1521(a). "An
impairment * * * is not severe if it does not significantly limit your
physical or mental ability to do basic work activities." Id. Dr Howard's
opinion regarding plaintiff's limitations does not lead to the conclusion
that plaintiff's mental impairment is severe.
In sum, the ALJ properly explained his reasons for affording Dr
Howard's opinion little weight, and the ALJ's findings were based on
substantial evidence in the record. Based on the lack of objective
findings to support Dr Howard's opinions, the ALJ was justified in
relying on the opinions and findings of fact by the state agency
psychiatric consultants, who separately reviewed the evidence and
concluded that plaintiff's mental impairments were not severe. See
Andrews, 53 F.3d at 1037.
Plaintiff also alleges that the ALJ improperly afforded greater weight
to the opinions of the non-examining physicians instead of to the opinion
of the examining physician, Dr Stone. The ALJ gave Dr Stone's opinion
"minor weight in light of its inconsistency with the examination given
straight leg raising, the absence of obvious weakness in shoulders,
thighs, or upper arms, and the normal range of motion, reflexes, sensation, strength, and
gait." AR at 14. The ALJ made specific references to Dr Stone's report,
and the ALJ's references accurately reflect the physical examination
findings made by Dr Stone.
The ALJ's decision to give little weight to Dr Stone's opinion is
supported by substantial evidence. Dr Stone stated that plaintiff had the
following limitations: (1) lift or carry twenty pounds occasionally and
ten pounds frequently; (2) stand or walk for two to four hours; and (3)
sit continuously for six hours. AR at 159. Dr Stone's opinion regarding
plaintiff's limitations finds little support in the results of
plaintiff's physical examination. Dr Stone opined that the physical
examination was normal, except for plaintiff's obesity and fingernail
surgery, and found no evidence of musculoskeletal abnormalities, weakness
in the shoulders, thighs or upper arms, or impaired reflexes, strength or
sensation. AR at 159.
Dr Stone also stated that, despite plaintiff's normal physical
examination, plaintiff's "history of back problems" would restrict
plaintiff's lifting, carrying, standing, walking and sitting abilities.
AR at 159. Considering the lack of objective findings to support Dr
Stone's opinion, and the fact that Dr Stone reviewed only plaintiff's
pain questionnaire, Dr Stone's statement suggests that her opinion is
based only on plaintiff's subjective complaints. The ALJ considered
plaintiff's assertions regarding his limitations and found them not to be
"fully credible." AR at 13. When an individual's subjective complaints
are contradicted and found not fully to be credible, a physician's
repetition of the complaints likewise is not credible. Barker v. Sec
of Health and Human Svcs, 882 F.2d 1474, 1477 (9th Cir 1989).
The ALJ was reasonable in finding plaintiff's credibility to be
questionable. For the ALJ to reject plaintiff's subjective complaints,
the ALJ must provide "specific, cogent reasons for the disbelief."
Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir 1990). The
reasons provided by the ALJ are specific and supported by substantial
evidence. The ALJ stated that there are discrepancies between plaintiff's
statements and the medical evidence. The ALJ reviewed the reports from
the examining experts and other evidence, including: (1) the results of
EKGs performed on November 10, 1997, and January 7, 2000, which were
normal (AR at 13, 115, 162); (2) a progress note from the San Francisco
Department of Public Health ("SFDPH") dated November 13, 2000, which
showed no evidence of tachyarrhythmia (AR at 212); (3) a progress note
from San Francisco General Hospital Medical Center ("SFGHMC") dated April
8, 1999, which showed full range of motion of plaintiff's right shoulder
(AR at 139); (4) and a report dated October 30, 2000, in which the SFDPH
reported that plaintiff had full range of motion on forward bending (AR
at 212A). The ALJ thus provided a specific reason for rejecting
plaintiff's assertions and relied on substantial evidence to reach that
conclusion. Accordingly, the ALJ's determination that plaintiff's
assertions are not fully credible is sufficient to support the rejection
of his complaints. See Lester v. Chater, 81 F.3d 821, 834 (9th
Cir 1996). Further, the ALJ's finding regarding plaintiff's credibility
justifies the ALJ's decision to give Dr Stone's opinion little weight.
Based on the lack of objective findings to support Dr Stone's opinions,
the ALJ properly relied on the opinions and findings of fact by the non-examining physicians, who separately
concluded that plaintiff's mental impairments were not severe. See
Andrews, 53 F.3d at 1037. The non-examining physicians reviewed
the objective evidence and concluded that plaintiff's limitations were as
follows: (1) lift or carry fifty pounds occasionally; (2) lift or carry
twenty-five pounds frequently; (3) stand or walk six hours per day; (4)
sit six hours per day; (5) and push or pull for an unlimited amount of
time. AR at 165. Based on these conclusions, the ALJ reasonably
determined that plaintiff could return to his past relevant work as a
computer technician, which requires that plaintiff lift twenty-five
pounds frequently. AR at 14-15.
In sum, the ALJ properly explained his reasons for affording greater
weight to the non-examining medical expert's opinions, and the ALJ's
findings were based on substantial evidence in the record. The court
finds no basis for granting plaintiff's motion for summary judgment or
for remanding the case.
For the foregoing reasons, the court affirms the ALJ's decision to deny
benefits. Accordingly, the court DENIES plaintiff's motion for summary
judgment (Doc # 12) and GRANTS defendant's motion for summary judgment
(Doc # 16).
IT IS SO ORDERED.
JUDGMENT IN A CIVIL CASE
() Jury Verdict. This action came before the Court for a
trial by jury. The issues have been tried and the jury has rendered its
(X) Decision by Court. This action came to trial or hearing
before the Court. The issues have been tried or heard and a decision has
IT IS SO ORDERED AND ADJUDGED that judgment is entered in
favor of defendant.
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