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United States District Court, S.D. California

October 5, 2005.

JO ANNE B. BARNHART, Commissioner of Social Security, Defendant.

The opinion of the court was delivered by: WILLIAM McCURINE, JR., Magistrate Judge

Plaintiff Rebecca Gibson brings this action pursuant to 42 U.S.C. § 405*fn1 to obtain judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her claim for Social Security Disability Insurance Benefits ("SSDI") under Title II and Title XVI of the Social Security Act ("Act"), 42 U.S.C. §§ 1381, et seq. Ms. Gibson has filed a motion for summary judgment. In that motion, Ms. Gibson argues that she should have been found "disabled" under the Act and the Appeals Council's decision adopting the Administrative Law Judge's ("ALJ") decision of October 14, 2003, denying her benefits, should be reversed because the ALJ's decision is not supported by substantial evidence and is based on legal error. The Commissioner (Defendant) has filed a cross-motion for summary judgment. In the motion, the Commissioner argues that the ALJ's decision is supported by substantial evidence and is not based on legal error.

These motions were referred to Magistrate Judge McCurine for a report and recommendation pursuant to 28 U.S.C. § 636(b)(2) and Federal Rule of Civil Procedure 72(b). Pursuant to the Southern District of California Local Civil Rule 7.1(d)(1), the Court finds these motions may be decided on the papers and that no oral argument is necessary. After careful consideration of the papers, the administrative record, and the applicable law, this Court recommends the Commissioner's decision adopting the ALJ's decision be AFFIRMED, Ms. Gibson's motion for summary judgment be DENIED, and Commissioner's cross-motion for summary judgment be GRANTED.


  On May 13, 2002, Plaintiff filed an application for Social Security Disability Insurance Benefits ("SSDI") claiming disability. Administrative Record ("A.R." at 14). Plaintiff's application was denied in the first instance and again after reconsideration. (A.R. at 14). Plaintiff requested an administrative hearing, which took place on May 5, 2003. Administrative Law Judge ("ALJ") Samuel Durso denied her request for benefits and issued an order on June 18, 2003. Plaintiff sough review of the ALJ's decision which was denied by the Appeals Council on October 17, 2003. (A.R. at 4). Hence, the ALJ's decision became the final decision of the Commissioner. (A.R. at 4). Thereafter, plaintiff filed the instant action in Federal Court.


  Plaintiff was born March 17, 1958 and is currently 47 years old. (A.R. at 25). At the alleged onset of her disability on May 13, 2002, plaintiff was 44 years old. (A.R. at 15). Ms. Gibson has a high school diploma. Her past relevant work experience includes twenty-one years as an electronics assembler. (A.R. at 15).

  At the May 5, 2003, hearing before the ALJ, Ms. Gibson testified that she suffers from systemic lupus Erythematosus and lupus profundus. (A.R. at 27-30). Plaintiff testified that she stopped working because of joint pain and soreness in both her shoulders, hands, and knees. (A.R. at 27). Plaintiff testified that due to her pain she can not sit for more than thirty minutes and must get out and move around for about 15-20 minutes before she can sit back down. Plaintiff uses a cane when she walks and asserts she can only walk about half of a block before stopping. (A.R. at 27). Plaintiff testified that she can not lift and carry more than 10 pounds. She uses elbow pads and splints for both hands. (A.R at 28-29). She is prescribed and takes pain medication. (A.R. at 29).


  The supplemental security income program established by Title XVI of the Act provides benefits to disabled persons without substantial resources and little income. 42 U.S.C. § 1383. To qualify, a claimant must establish an inability to engage in "substantial gainful activity" because of a "medically determinable physical or mental impairment" that "has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 1382c(a)(3)(A). The disabling impairment must be so severe that, considering age, education, and work experience, the claimant cannot engage in any kind of substantial gainful work that exists in the national economy. 42 U.S.C. § 1382(a)(3)(B).

  The Commissioner makes this assessment by a five-step analysis. First, the claimant must currently not be working. 20 C.F.R. § 416.920(b). Second, the claimant must have a "severe" impairment. 20 C.F.R. § 416.920(c). Third, the medical evidence of the claimant's impairment is compared to a list of impairments that are presumed severe enough to preclude work; if the claimant's impairment meets or equals one of the listed impairments, benefits are awarded. 20 C.F.R. § 416.920(d). Fourth, if the claimant can do his past work benefits are denied. 20 C.F.R. § 416.920(e). Fifth, if the claimant cannot do his past work and, considering the claimant's age, education, work experience, and residual functional capacity, cannot do other work that exists in the national economy, benefits are awarded. 20 C.F.R. § 416.920(f). The last two steps of the analysis are required by statute. 42 U.S.C. § 1382(a)(3)(B).

  In addition, when evaluating the severity of a claimant's alleged mental impairments, the Commissioner uses a "special technique" at each level of the review process. 20 C.F.R. § 416.1520a. In order to be considered disabled under the Act, the claimant must have (1) a medically determinable mental impairment(s), 20 C.F.R. § 416.1520a(b)(1),*fn2 and (2) exhibit specified functional limitations as a result of that impairment(s) that prohibit the claimant from engaging in any gainful activity. 20 C.F.R. § 416.1520a(b)(2). If the claimant has a medically determinable mental impairment but does not exhibit the requisite functional limitations, the claimant may nevertheless still be considered disabled if the claimant exhibits clusters of symptoms or a syndrome that indicate an inability to engage in gainful activity. 20 C.F.R. § 404.1520a(d); 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00.A. (impairment(s) must either pose functional limitations or cause symptoms or a syndrome to support a finding that the claimant is disabled).

  Section 1383(c)(3) of the Social Security Act through Section 405(g) of the Act, allow unsuccessful applicants to seek judicial review of a final agency decision of the Commissioner. 42 U.S.C. §§ 1383(c)(3), 405(g). The scope of judicial review is limited, however, and the Commissioner's denial of benefits "will be disturbed only if it is not supported by substantial evidence or is based on legal error." Brawner v. Secretary of Health and Human Services, 839 F.2d 432, 433(9th Cir. 1988) (citing Green v. Heckler, 803 F.2d 528, 529 (9th Cir. 1986)).

  Substantial evidence means "more than a mere scintilla" but less than a preponderance. Sandqathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997). "[I]t is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). The court must consider the record as a whole, weighing both the evidence that supports and detracts from the Commissioner's conclusions, Desrosiers v. Secretary of Health & Human Services, 846 F.2d 573, 576, (9th Cir. 1988). If the evidence supports more than one rational interpretation, the court must uphold the ALJ's decision. Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). When the evidence is inconclusive, "questions of credibility and resolution of conflicts in the testimony are functions solely of the Secretary." Sample, 694 F.2d at 642. The ALJ has a special duty in social security cases to fully and fairly develop the record in order to make an informed decision on a claimant's entitlement to disability benefits. DeLorme v. Sullivan, 924 F.2d 841, 849 (9th Cir. 1991). Because disability hearings are not adversarial in nature, the ALJ must "inform himself about the facts relevant to his decision," even if the claimant is represented by counsel. Id. (quoting Heckler v. Campbell, 461 U.S. 458, 471 n. 1 (1983)).

  Even if the reviewing courts finds that substantial evidence supports the ALJ's conclusions, the court must set aside the decision if the ALJ failed to apply the proper legal standards in weighing the evidence and reaching his or her decision. Benitez v. Califano, 573 F.2d 653, 655 (9th Cir. 1978). Section 405(g) permits a court to enter a judgment affirming, modifying or reversing the Commissioner's decision. 42 U.S.C. § 405(g). The reviewing court may also remand the matter to the Social Security Administrator for further proceedings. Id.


  Medical Evidence Presented

  To understand Plaintiff's alleged medical problems a chronological review of her relevant medical history is presented here:

  — March 20, 1998: Plaintiff is seen by Dr. Serocki, M.D. for her shoulder. Patient status is noted by Dr. Serocki as "not improved significantly." (A.R. at 137).

  — February 13, 2002: Plaintiff presents hive like symptoms. Dr. Klofkorn, M.D. notes SLE with lupus profundus fairly well controlled. (A.R. at 163).

  — April 17, 2002: Dr. Klofkorn examines Plaintiff. He notes her right shoulder remains painful and some occasional lesions on her legs. No other signs of active lupus. (A.R. at 158).

  — May 8, 16, 29, 2002: Plaintiff is seen by Dr. Klofkorn. Plaintiff's lupus is active but doing better with medication. (May 29, 2002). (A.R. at 154). Plaintiff has decreased range of motion in her right shoulder. (May 8, 2002). (A.R. at 156). Plaintiff's right foot is swollen. (May 16, 2002). (A.R. at 155). Plaintiff is laid off from her job. (May 16, 2002). (A.R. at 156).

  — June 12, 2002: Plaintiff sees Dr. Klofkorn. He states that she continues to develop skin lesions and continues to have facial swelling. He finds her Lupus profundus active. (A.R. at 153).

  — June 21, 2002: Plaintiff is seen by Dr. Stanton, M.D. for Lupus, rheumatism, arthritis and concentration. Dr. Stanton noted that her Lupus was medically managed and currently physically non-severe. (A.R. at 140).

  — June 26, 2002: Dr. Klofkorn examines Plaintiff and notes that there is "no real change is [sic] problems." (A.R. at 152). Plaintiff still has facial swelling and recurrent painful nodules on her legs. No mention is made of Plaintiff's right shoulder and knee. (A.R. at 152).

  — July 12, 2002: Plaintiff undergoes an Esophagus and upper GI. Her test results show no abnormalities. (A.R. at 150).

  — July 18, 2002: Plaintiff is seen by Dr. Klofkorn. He states that she continues to have "several problems" including new lesions from her Lupus, right shoulder pain, and right knee pain. He describes her rotator cuff tendinitis as occupation-related. (A.R. at 148).

  — August 1, 2002: Dr. Klofkorn examines Plaintiff. He notes that her Lupus is controlled. Periorbital swelling has improved. Fewer crops of painful nodules. Dr. Klofkorn also notes that Plaintiff's right shoulder is more painful. (A.R. at 145).

  — August 27, 2002: Plaintiff is seen in Urgent Care complaining of lower back pain. Dr. Chambers, M.D. is the treating physician. He increases her Flexiril medication and prescribes heat for the pain and resting in a comfortable position. (A.R. at 144).

  — September 13, 2002: Dr. Klofkorn responds to Defendant's request for information regarding Plaintiff's claimed physical impairments. Specifically, Dr. Klofkorn notes that Plaintiff's right knee remains painful but that her "right shoulder is doing better with good protection, cold packs." (A.R. at 143). Dr. Klofkorn also notes that her Lupus is controlled.

  Vocational Evidence Presented

  The ALJ utilized a vocational expert ("VE") in this case — Mary Jesko. Ms. Jesko testified that, after having reviewed the vocational statements of record and listening to the testimony, she classified claimant's past work as light, semi-skilled. (A.R. at 41-42). Thereafter, Ms. Jesko was presented with a hypothetical question from the ALJ incorporating the ALJ's determination of Plaintiff's residual functional capacity. Presented with that information Ms. Jesko testified that it was her opinion that Plaintiff could perform her past relevant work. (A.R. at 43). The ALJ presented Ms. Jesko with an alternative hypothetical which incorporated Plaintiff's claims of restrictions and limitations. Under those circumstances, the VE testified that Plaintiff would not be able to perform her past relevant work. (A.R. at 43). The VE further testified that under the second hypothetical, Plaintiff would not be able to perform any alternate work. (A.R. at 43).

  ALJ's Medical Evidence Evaluation

  After a lengthy discussion of the medical evidence presented and a presentation of Plaintiff's testimony, the ALJ determined Plaintiff was not entitled to disability insurance benefits under the Act. (A.R. at 18).

  Specifically, the ALJ found that Plaintiff had not engaged in gainful activity since May 13, 2002, and that the medical evidence established she suffered from Lupus profundus, right shoulder pain and right knee pain and systemic Lupus erythematosus. (A.R. at 16). However, the ALJ concluded these impairments or combinations thereof failed to meet or equal the criteria of any of the sections listed in the Social Security Regulations. (A.R. at 16).

  In reaching his decision the ALJ considered the February 13, 2002 report of Dr. Klofkorn, M.D. In doing so, the ALJ noted that Dr. Klofkorn reported that Plaintiff's SLE with lupus profundus was fairly well-controlled. (A.R. at 16).

  The ALJ also considered Dr. Klofkorn's report from an examination of Plaintiff on March 27, 2002. The ALJ cites to the sections of the report where Dr. Klofkorn states that Plaintiff's lupus profundus is more active and that she has had showers of lesions on her legs and on the right side of her face. (A.R. at 16).

  Additionally, the ALJ considered Dr. Klofkorn's report from an April 17, 2002 examination. The ALJ noted that Dr. Klofkorn reported that Plaintiff's lupus profundus was settling back into the usual patter on occasional lesions on her legs which heal after a few days. The ALJ also noted that at this examination, Plaintiff's right shoulder continued to be painful, but that there were no other signs of active lupus. (A.R. at 16).

  The ALJ also cited to Plaintiff's May 8, 2002 exam by Dr. Klofkorn, noting that her lupus profundus was active again. The ALJ further noted that Plaintiff had decreased range of motion in her right shoulder accompanied by pain. (A.R. at 16).

  In his decision, the ALJ refers to Plaintiff's June 26, 2002, doctor's visit. The ALJ notes that Dr. Klofkorn reports that Plaintiff's facial swelling continues with recurrent small crops of painful nodules on her legs that go away over a few days. The lupus profundus is still active. (A.R. at 16).

  The ALJ also considered the July 18, 2002, report of Dr. Klofkorn who found that Plaintiff's SLE was quiet but that she continued to have lesions. Plaintiff's right shoulder had decreased range of motion with pain and tenderness. (A.R. at 16-17).

  The ALJ reviewed and considered the reports of Dr. Klofkorn from his August 1, 2001 and August 30, 2002, examinations of Plaintiff. On August 1, 2002, Plaintiff's periorbital swelling had improved with fewer crops of nodules. Plaintiff was undergoing physical therapy for her increasingly painful right shoulder. On August 30, 2002, Plaintiff's right knee was still painful but her right shoulder had improved. (A.R. at 17). The ALJ noted that the report referred to continued skin lesions in small crops which resolved in a few days. (A.R. at 17).

  In his decision, the ALJ noted that, other than the above mentioned reports, there were no further medical records from Dr. Klofkorn or any other physician or rheumatologist. (A.R. at 17.).

  In sum, in reviewing the medical records and testimony presented, the ALJ found that Plaintiff's "medically determinable impairments do not meet or medically equal one of the listed impairments in Appendix 1, Subpart P, Regulations No. 4." (A.R. at 18). Therefore, the ALJ rejected Plaintiff's allegations of disabling limitations, and determined that Plaintiff "can perform her past relevant work as an electronics assembler which is a light semiskilled job as it is generally performed in the national economy." (A.R. at 19). The ALJ further found that the Plaintiff had performed her past work at the sedentary level of work activity. (A.R. at 19).

  Plaintiff's Claim on Appeal

  The single contentions raised by Plaintiff are that the ALJ's decision was not supported by substantial evidence and is not free of legal error. Plaintiff argues that the ALJ improperly discredited her testimony about symptoms and pain. (Pl's P.&A. at 9-10).

  According to Plaintiff, the pain and physical limitations she experiences as a result of her physical impairments were sufficiently proven to be severe by the medical evidence presented. Plaintiff argues that none of the cited reasons in the ALJ's decision identified what testimony the ALJ found not credible. (Pl's P.&A. at 9-10). "Failure to isolate particular complaints of pain and discuss the evidence suggesting that those complaints are not credible, is an error of law requiring reversal. Varney v. Secretary of Health and Human Services, 846 F.2d 581, 584 (9th Cir. 1988) (Varney I)." (Pl's P.& A. at 9).

  The Defendant argues that the ALJ properly considered and addressed in his decision the medical opinion evidence presented in the record, Plaintiff's testimony regarding her symptoms, pain, treatment and his personal observations of Plaintiff at the hearing. (Def. P.&A. at 4).

  In the instant case, the ALJ found that the Plaintiff's allegations of disabling pain, impairments and limitations are not credible. (A.R. at 17). When evaluating a plaintiff's claim of subjective symptom testimony, the ALJ must engage in a two step analysis: (1) the Cotton test*fn3 and (2) analysis of the plaintiff's credibility. Smolen v. Chater, 705 F.3d 1273, 1281-82 (9th Cir. 1996). The Cotton test requires the ALJ to determine whether the plaintiff has produced objective medical evidence of an underlying impairment and whether the symptoms alleged could reasonably be produced by the impairment. Bunnell v. Sullivan, 947 F.2d 341 (9th Cir. 1991). If the plaintiff meets the Cotton test, and there is no evidence of malingering, the ALJ must offer specific, clear and convincing reasons to reject the plaintiff's symptom testimony. See Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). To meet the standard, the ALJ must specify which testimony is not credible and "what evidence suggests the complaints are not credible." Id. The ALJ "must evaluate the intensity, persistence, and limiting effects of the individual's ability to do basic work activities." Social Security Ruling, No. 96-7p, (SSA July 2, 1996). When the individual's statements are not substantiated by objective medical evidence, "the adjudicator must make a finding on the credibility of the individual's statements based on a consideration of the entire case record," including but not limited to "the medical reports and laboratory findings, the individual's own statements about the symptoms and how they affect the individual," as well as any other "relevant evidence in the case file." Id. "When additional information is needed to assess the credibility of the individual's statements about symptoms and their effects, the adjudicator must make every reasonable effort to obtain available information that could shed light on the credibility of the individual's statements." Id. In addition to medical evidence, the adjudicator "must consider" the kinds of evidence identified in 20 C.F.R. 404.1529(c) and 426.929(c), including factors such as the claimant's daily activities, factors that precipitate or aggravate the symptoms, medications taken to relieve pain, treatment other than medication, and "[a]ny other factors concerning the individuals's functional limitations and restrictions due to pain or other symptoms." Id. Consistency is "[o]ne strong indication of the credibility of an individual's statements. . . ." Id.

  At the review hearing, Plaintiff testified that she was unable to work because of pain and soreness in her joints, including both shoulders, hands and knees. (A.R. at 27). She further testified that it was mainly her joint pain that prevented her from working. (A.R. at 27-28). She testified that she wears a back brace, elbow pad and splints for both hands. (A.R. at 28-29). She stated that at least two to three days a week she cannot get out of bed in the morning because she is so stiff. (A.R. at 33). Plaintiff also testified that she takes several medications for her lupus, Ultracet for pain and medication for depression. (A.R. at 29-32).

  These statements together with the medical reports indicate that Plaintiff has presented objective medical evidence that could support her pain allegations as required under the Cotton test, thus meeting the initial threshold showing. Accordingly, the ALJ correctly proceeded to the next step: to provide specific, clear and convincing reasons for rejecting Plaintiff's pain testimony.

  The ALJ considered the evidence of Plaintiff's medical history and physical limitations, but found the evidence insufficient to adequately support Plaintiff's allegations of disabling pain to the degree alleged. (A.R. at 17). The ALJ provided twelve reasons for rejecting Plaintiffs testimony as not credible. First, the ALJ noted that Plaintiff is not taking the kind of medication that is usually prescribed for severe and disabling pain. (A.R. at 17). Second, the ALJ points out that Plaintiff's medical reports show her lupus is being medically managed. (A.R. at 17). Third, lesions resulting from a flare-up of Plaintiff's lupus have been found to heal over a few days. (A.R. at 17). Fourth, Dr. Klofkorn's reports show that Plaintiff has none of the more severe symptoms of lupus (e.g. hair loss, oral lesions, or joint pain) other than right shoulder tenderness. (A.R. at 17). Fifth and Sixth, the ALJ notes that her shoulder problem manifests only a "slight decreased range of motion" and later medical reports indicate that Plaintiffs shoulder condition is improved. (A.R. at 17). Seventh and Eighth, the ALJ points out that Plaintiff's SLE is controlled and her knee problems "are being treated conservatively with medication." (A.R. at 17). Ninth and Tenth, the ALJ also points out that Dr. Klofkorn has never placed any work restrictions on Plaintiff and Plaintiff has never been hospitalized for any of her problems. (A.R. at 18). Eleventh and Twelfth, the ALJ notes that the Plaintiff did not assert she could not perform personal needs without assistance. Finally, she was able to attend the disability benefits hearing and testify on her own behalf. (A.R. at 18).

  The ALJ's interpretation of the Plaintiff's symptoms was sound and supported by objective medical evidence. A review of the ALJ's decision shows that he based his conclusion regarding Plaintiff's credibility upon Plaintiff's testimony, her medical history, and the reports submitted by Dr. Klofkorn. (A.R. at 18).

  In the present case, in reaching his decision, the ALJ primarily relied on only the treating physician's reports and opinions. Moreover the ALJ cited to the lack of any disability evaluation: "we don't have any assessments from any treatment sources at all. There isn't even a consult in this case." (A.R. at 39). The ALJ even held the record open for fourteen days after the hearing in order for Plaintiff to supplement her case with some sort of physician's report and assessment regarding her alleged disability. (A.R. at 43-44). However, it appears that Plaintiff failed to provide any additional information for the ALJ to consider. (A.R. at 14). For these reasons, and based on a review of the record provided to this Court, it appears that the ALJ gave proper weight to the physician's conclusions and the testimony from the Plaintiff.

  The ALJ's determination that Plaintiff's allegations of severe pain are not credible is supported by clear and convincing reasons. The ALJ presented several reasons for rejecting Plaintiff's claim of disabling pain. All were clear and convincing reasons for determining that Plaintiff's pain did not rise to the level of a disability justifying disability benefits. The ALJ's reasons were clearly based on the medical evidence submitted as well as Plaintiff's testimony. As such, Plaintiffs claim of a disabling impairment is rejected and contradicts Plaintiffs argument that the ALJ improperly discredited Plaintiff's pain testimony. Finally, the ALJ's findings that Plaintiff has the residual functional capacity to perform her past relevant work were supported by substantial evidence in the record. Thus, the ALJ committed no legal error when he determined Plaintiff was "not under a disability as that term is defined in the Social Security Act at any time through the date of this decision." (A.R. at 19).


  After a thorough review of the record and the papers submitted and based on the reasons set forth above, this Court finds the ALJ's denial of benefits is supported by substantial evidence. Accordingly, it is recommended that Plaintiff's Motion for Summary Judgment be DENIED and that Defendant's Cross-Motion for Summary Judgment be GRANTED.

  This Report and Recommendation of the undersigned Magistrate Judge is submitted to the United States District Judge assigned to the this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1).

  IT IS HEREBY ORDERED that any written objections to this Report must be filed with the Court and served on all parties no later than October 31, 2005. The document should be captioned "Objections to Report and Recommendation."

  IT IS FURTHER ORDERED that any reply to the objections shall be filed with the Court and served on all parties no later than November 14, 2005. The parties are advised that failure to file objections within the specified time may waive the right to raise those objections on appeal of the Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).



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