United States District Court, S.D. California
October 5, 2005.
REBECCA GIBSON, Plaintiff,
JO ANNE B. BARNHART, Commissioner of Social Security, Defendant.
The opinion of the court was delivered by: WILLIAM McCURINE, JR., Magistrate Judge
REPORT AND RECOMMENDATION DENYING PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT AND GRANTING DEFENDANT'S CROSS MOTION FOR SUMMARY
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
I. PROCEDURAL HISTORY
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
II. FACTUAL BACKGROUND
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
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).
III. LEGAL STANDARD
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
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
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
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
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
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
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
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.
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).
IT IS SO ORDERED.
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