United States District Court, S.D. California
November 18, 2005.
FRANCES WATERS, Plaintiff,
JO ANNE B. BARNHART, Commissioner of Social Security, Defendant.
The opinion of the court was delivered by: LEO PAPAS, Magistrate Judge
REPORT AND RECOMMENDATION GRANTING DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT (8-1) AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
STATEMENT OF THE CASE
On July 10, 2000, Frances M. Waters (hereinafter "Plaintiff")
applied for disability insurance benefits under Title II of the
Social Security Act (hereinafter "the Act"). (Tr. 91.) The
Commissioner denied the application both initially and upon
reconsideration. (Tr. 68, 74.) On May 4, 2001, Plaintiff
requested a hearing before an Administrative Law Judge
(hereinafter "ALJ") where Plaintiff and a vocational expert were
present and testified. (Tr. 79, 44-65.) On December 18, 2001, the
ALJ denied Plaintiff's applications. (Tr. 20-40.) On July 30,
2004, the Appeals Council declined review of the matter. (Tr.
4-6.) On September 24, 2004, Plaintiff filed a complaint for
Judicial Review and Remedy on Administrative Decision pursuant to
42 U.S.C. § 405 (g). On May 11, 2005, Plaintiff filed a Motion for Summary Judgment
pursuant to Rule 56 of the Federal Rules of Civil Procedure. On
June 6, 2005, Jo Anne B. Barnhart, Commissioner of the Social
Security Administration (hereinafter "Defendant"), through the
United States Attorney, filed a Cross-Motion for Summary
Judgment. On May 17, 2005, the District Judge assigned to this
case referred to the undersigned for Report and Recommendation
all matters arising in this action. The motions are now before
STATEMENT OF THE FACTS
Plaintiff has not worked since May 28, 1995. On May 29, 1995.
Plaintiff alleged that she was disabled. (Tr. 91.) Plaintiff was
born on March 2, 1962 and was 33 years old when she applied for
SSI benefits. (Tr. 91.) She is currently 43 years old. Plaintiff
completed high school and has two years of college education.
(Tr. 103.) Plaintiff also completed cosmetology school. (Tr.
103.) Her previous employment includes working as a hairstylist
and as a waitress. (Tr. 98.) Plaintiff alleged that she was
disabled due to fibromyalgia*fn1 and depression exacerbated
by an automobile accident in 1995.*fn2
On May 28, 1995, Plaintiff was involved in a head-on motor
vehicle accident and was admitted to the hospital. (Tr. 162.) The
Plaintiff estimated her car was traveling 60 to 70 miles per
hour, however there was no roll-over, she was not ejected, and
she did not lose consciousness. (Tr. 162.) Plaintiff testified that because she was three and a
half months pregnant at the time, she refused treatment. (Tr.
49.) Two x-rays were done, which did not reveal any definite
fracture and only suggested an incomplete posterior C1 arch,
which was probably a congenial defect.*fn3 (Tr. 165.)
Plaintiff had significant musculoskeletal pain and spasm and was
unable to ambulate well on the first day. (Tr. 162.) However, on
the second day she was able to ambulate fairly well and was
thought to be stable for discharge. (Tr. 162.) It was reported
that she had no obvious bony injuries and that her pain was
controlled well with oral pain medications. (Tr. 162.) On May 29,
1995, Plaintiff was diagnosed with an abdominal wall contusion
and was discharged. (Tr. 168.)
On October 16, 1996, x-rays of the Plaintiff's right wrist and
hips were normal. (Tr. 236, 243.)*fn4 On October 21, 1996,
an arthrogram of the Plaintiff's right wrist was taken, and
showed that her wrist was normal. (Tr. 245.) On April 6, 1998, an
x-ray of Plaintiff's feet showed both feet had hallux valgus of
the metatarsophalangeal joint*fn5 and metatarsus primus
adductus deformities.*fn6 (Tr. 238.) On April 29, 1998, a
whole body bone scan was conducted. (Tr. 239.) The results of the
scan were unremarkable except for very minimally increased
activity in bilateral humeral heads, that might represent
arthritic process or bursitis of the shoulders.*fn7 (Tr.
239.) On March 29, 1999, the Plaintiff went to the Sutter Amador
Hospital complaining of chest pain. (Tr. 290-93.) Her chest
x-ray, EKG, and blood pressure were normal, and she was
discharged with a diagnosis of probable panic attack. (Tr. 290.)
On December 17, 1999, the Plaintiff was treated by Dr. Dennis
Del Paine, M.D. (Tr. 209-221.) Plaintiff's complaints included
sinus infections, morning stiffness, swelling in her hands and
feet, and chronic back ache. Dr. Del Paine found the Plaintiff to
have swollen nasal muscosa, tenderness in both elbows, tenderness
at the subtalar joint, tarsametatarsal junction, third and fourth
metatarsophalangeal joints,*fn8 and tenderness at trigger
points in a symmetric pattern. (Tr. 219.) Dr. Del Paine diagnosed
the Plaintiff with chronic sinusitis, allergic rhinitis,
fibromyalgia, and possible early development of inflammatory
arthritis. (Tr. 219.) On December 20, 1999, an antinuclear
antibody test, performed at the direction of Dr. Del Paine
resulted in a normal finding virtually eliminating the
possibility of active, untreated systemic lupus erythematosus and
was also evidence against other connective tissue diseases. (Tr.
On January 21, 2000, Plaintiff was examined by Dr. Thomas
Bowhay, M.D. (Tr. 201-08.) He assessed Plaintiff with
fibromyalgia and possible underlying arthritis. He recommended
that Plaintiff seek another rheumatologic opinion because she
then had an opposing opinion. (Tr.201-208.)
On January 21, 2000, x-rays of the Plaintiff's hands revealed
them to be normal. (Tr. 215.) X-rays of her sinuses showed
chronic sinusitis. (Tr. 215.)
On February 1, 2000, Plaintiff was admitted to Sutter Amador
Hospital on a seventy-two hour hold after her husband reported to
police that she had threatened suicide. (Tr. 192-99, 274-77.) She
was assessed by Frank Whitman, LPT (Licensed Psychiatric
Technician) with major depressive disorder, recurrent, severe,
without psychotic features. (Tr. 194.) He also assigned her a
current GAF score of 40 and a GAF score of 68 in the past
year.*fn9 (Tr. 194.) On May 26, 2000, a pulmonary function test indicated only a
mild obstructive pulmonary impairment. (Tr. 214.) On June 30,
2000, another pulmonary function test revealed Plaintiff had a
forced vital capacity*fn10 of 4.27 liters; which is within
105% of the level predicted for the Plaintiff. (Tr. 213.) On that
same date, Dr. Del Paine noted that Plaintiff's breathing was
improved with medication, and that she had no problems with her
medications. (Tr. 210.)
On July 14, 2000, Plaintiff was examined by a rheumatologist,
Dr. Albert Ferrari, M.D. (Tr. 229.) Dr. Ferrari reported that
Plaintiff had tenderness in the anterior and posterior strap
muscles of the neck, however he also found she had excellent
range of motion. (Tr. 233.) He reported normal grade V strength
in her extremities, and no swelling, inflamation, or limitation
of motion of any joint. (Tr. 234.) He indicated there was
tenderness over the MP joints of the feet and PIP joints of the
toes, but that it was nonspecific with no objective findings.
(Tr. 234.) He reported tenderness in the elbows, shoulders, hips,
knees, and ankles, and tenderness in both sacroiliac areas
radiating around the hips. (Tr. 234.) He reported that Plaintiff
presented with widespread body tenderness, poor sleep habits,
fatigue, irritable bowel syndrome, and chronic headaches, all
consistent with fibromyalgia, however he did not give a tender
point count.*fn11 (Tr. 234.) Dr. Ferrari diagnosed the
Plaintiff with fibromyalgia and ruled out inflammatory arthritis. (Tr. 234.) He prescribed Soma, Celebrex, and Zoloft. (Tr. 234.)
In his subsequent notes, it was reported that the Plaintiff
called Dr. Ferrari and reported the medication was ineffective in
treating her pain, and was making her tired and irritable. Dr.
Ferrari changed the medication. (Tr. 231.)
On July 18, 2000, a bilateral x-ray of Plaintiff's hips
revealed normal findings, and x-rays of Plaintiff's knees showed
minimal degenerative changes. (Tr. 270.)
On September 14, 2000, Dr. Ferrari wrote a status letter for
the Plaintiff indicating that he had treated her for fibromyalgia
for two months. (Tr. 229.) He stated that the treatment for
fibromyalgia included antidepressants, but that Plaintiff was
unable to take any class of antidepressant because of side
effects. (Tr. 229.) Dr. Ferrari stated that Plaintiff continued
to have significant symptomatology from her fibromyalgia, and he
opined that she was chronic and stationary and would be unable to
work, even in part-time, light-work situations. (Tr. 229.)
On September 19, 2000, Plaintiff underwent a psychiatric
examination from consultive physician, Dr. Michael Joyce, M.D.
(Tr. 222-26.) Plaintiff reported that she had been diagnosed with
fibromyalgia at the age of 21, and that since the automobile
accident in 1995, her pain had intensified. (Tr. 222.) Plaintiff
stated that the pain caused her to be irritable and edgy. (Tr.
222.) Plaintiff reported that she believed her February 2000
suicide attempt was due to a medication side effect. (Tr. 223.)
Dr. Joyce assessed the Plaintiff's mood as euthymic, her affect
reactive, her intelligence average and her judgment grossly
intact. (Tr. 222.) He also observed that Plaintiff had a normal
gait, and that she did not exhibit any difficulty in sitting or
arising from a chair. (Tr. 224.) Dr. Joyce found no Axis 1
condition at the time, and assigned Plaintiff a mild GAF score of
70. (Tr. 225.) He concluded that Plaintiff was able to maintain
attendance and perform within a schedule, complete a workday and
workweek without interruption from psychiatric symptoms, interact
appropriately with others, identify hazards and take appropriate
actions, and respond appropriately to supervision and co-workers.
On November 24, 2000, Plaintiff went to Sutter Amador Hospital
with a complaint of shortness of breath, cough, and stress. (Tr.
269.) Plaintiff was diagnosed with acute bronchitis, asthma, and
situational anxiety disorder. (Tr. 269.) She was treated and
discharged that same day.
On February 15, 2001, Plaintiff was examined by consultive
internist, Dr. Bernard Michlin, M.D. (Tr. 295-98.) Plaintiff told
Dr. Michlin that she had been diagnosed with fibromyalgia in her twenties, and that it had been exacerbated by
the 1995 motor vehicle accident. (Tr. 297.) Dr. Michlin reported
that Plaintiff had an absolutely normal musculoskeletal and
orthopedic exam, and he found no evidence of mental impairment.
(Tr. 297.) He found that Plaintiff was able to ambulate without
any assistive devices, that she had full range of motion, and had
normal 5/5 muscle strength in all muscle groups. (Tr. 297.) He
also palpitated her over numerous spots and found no specific
trigger points. (Tr. 297.) He noted that she did not appear to
have a significant amount of fatigue, and that there was no
significant limitations in her ability to sit, stand, walk, move
about, carry, handle objects, push, pull, crouch, bend, or squat.
(Tr. 298.) Dr. Michlin stated that he had extensive experience
with fibromyalgia and that Plaintiff didn't appear to fit the
criteria at the time of the exam. (Tr. 297.)
On February 16, 2001, Plaintiff made a formal complaint
regarding Dr. Michlin. (Tr. 148-49.) Plaintiff stated that during
her exam she was asked to pick up 10 and 25 pound weights. (Tr.
148.) According to Plaintiff, when she attempted to lift the 25
pound weight she pulled muscles in her neck and hurt her elbow.
(Tr. 148.) Plaintiff also stated that during her appointment she
experienced muscle spasms and hip pain, she cried for 30 minutes,
her requests to leave were denied, and she spent a total of 3
hours in the office. (Tr. 149.) Plaintiff also stated her medical
records were incorrectly read aloud to Dr. Michlin, and that
although she requested corrections, none were made. (Tr. 148.)
On March 2, 2001, Plaintiff saw Dr. Alberto Araya, M.D. at the
Scripps Clinic, Santee. (Tr. 397-98.) Dr. Araya assessed the
Plaintiff with fibromyalgia and referred her to Dr. Shikman for a
full rheumatological examination. (Tr. 398, 344.)
A March 15, 2001, x-ray of Plaintiff's thoracolumbar spine
showed slight kyphosis at the T12-L1 level.*fn12 (Tr. 419.)
No evidence of acute fracture was found and the disk spaces were
overall well preserved. (Tr. 419.)
Plaintiff returned to Dr. Araya on May 25, 2001, complaining of
foot pain and swelling in her knees. (Tr. 386.) Plaintiff
reported that she started walking to lose weight. (Tr. 386.) Dr. Araya opined that she had started walking too fast or too strong,
and advised Plaintiff to slow down and try another lower-impact
form of exercise, such as swimming or bicycling. (Tr. 386.) An
x-ray of Plaintiff's feet on May 25, 2001, revealed no acute
osseous*fn13 findings, and bilateral hallux valgus
deformity. (Tr. 418.)
On June 26, 2001, rheumatologist Dr. Franklin Kozin, M.D.
examined the Plaintiff. (Tr. 360-64.) Dr. Kozin found the
Plaintiff had sixteen of eighteen fibromyalgic tender points.
(Tr. 363.) He noted the Plaintiff had a normal gait, intact
sensation, and intact muscle strength with good bulk and tone.
(Tr. 363.) He further noted that laboratory studies from March
15, 2001, showed a normal complete blood count and comprehensive
metabolic panel. (Tr. 364.) Dr. Kozin also gave Plaintiff the
Beck Depression Inventory. (Tr. 361, 375-76.) The Plaintiff
scored 22 on the assessment, which was consistent with moderate
clinical depression. (Tr. 361, 376.) Dr. Kozin found no evidence
of rheumatoid arthritis or systemic rheumatic disorder, and
diagnosed the Plaintiff with fibromyalgia, moderate depression
with question of manic depressive disorder, and probable
intolerance to antidepressants. (Tr. 364.)
On July 11, 2001, Plaintiff sought follow-up treatment from Dr.
Araya for back pain. (Tr. 354.) Dr. Araya sent Plaintiff to
physical therapy. (Tr. 354.) Laboratory tests of July 11, 2001,
showed that the Plaintiff was negative for the rheumatoid factor
and also had a normal sedimentation rate.*fn14 (Tr. 414-15.)
On July 16, 2001, Plaintiff attended one physical therapy
session with Rick Astone, MPT. (Tr. 330.) He reported that
Plaintiff displayed normal thoracic range of motion, moderate
limitations in cervical flexion and left rotation, and mild
limitation in right and left side bending. (Tr. 330.) He noted
that she had normal upper extremity strength. (Tr. 330.) The
Plaintiff did not return for her following physical therapy
appointments and was discharged as a patient. (Tr. 330.) On July 27, 2001, rheumatologist Alexander Shikhman, M.D.
examined the Plaintiff. (Tr. 344-45.) Plaintiff told Dr. Shikhman
that she thought she had rheumatoid arthritis, although her past
blood work had always been negative. (Tr. 344.) Dr. Shikhman
found the Plaintiff had normal 5/5 muscle strength, full range of
motion in all extremities, good hand grip, and no active
synovitis*fn15 of the hand small joints or feet small
joints. (Tr. 345.) However, he did find that Plaintiff had 14 out
of 18 fibromyalgia tender points, and had tenderness palpitating
the SI joints by the Gaenslin's test.*fn16 (Tr. 345.) He
also noted that a pelvic x-ray of July 24, 2001 showed bilateral
SI joint inflamation, and fusion of the right SI joint. (Tr.
345.) Dr. Shikman assessed the Plaintiff with seronegative
spondylolisthesis*fn17 suggestive of ankylosing
spondylolysis.*fn18 (Tr. 345.)
On August 30, 2001, Dr. Kendra Weissbein, Ph.D. completed a
mental impairment questionnaire for the Plaintiff. (Tr. 317-22.)
Dr. Weissbein reported seeing the Plaintiff five times beginning
on July 1, 2001. (Tr. 317, 319.) Dr. Weissbein diagnosed
Plaintiff with major depression and panic disorder without
agoraphobia. (Tr. 317.) She rated Plaintiff's current GAF score at 50 and assessed her past year's GAF at 50. (Tr. 317.) In
response to a question asking the Doctor to list her clinical
findings, Dr. Weissbein wrote only that the Plaintiff related
problems with sleep, depression, anxiety, and panic attacks which
are disabling. (Tr. 318.) Dr. Weissbein noted that the
Plaintiff's impairments produced a marked restriction of the
activities of daily living, moderate difficulties in maintaining
social functioning, and frequent difficulties in maintaining
concentration, persistence or pace. (Tr. 322.) She further
predicted that Plaintiff would be absent from work more than
three times a month, and that Plaintiff would have difficulty
working a regular job on a sustained basis due to physical
limitation, anxiety, depression and panic attacks. (Tr. 321.)
On August 24, 2001, Plaintiff returned to Dr. Shikhman,
complaining of nerve problems and low back pain. (Tr. 335.) Dr.
Shikman stated that the nerve problems and pain may have been
secondary to Plaintiff's ten days of bed rest following an
elective stomach reduction surgery on August 6, 2001. (Tr.
335-36.) Dr. Shikman found tender SI joints bilaterally to
palpitation, and again assessed Plaintiff with seronegative
spondylolisthesis as a working diagnosis. (Tr. 335.) He switched
her medication, and noted fibromyalgia could be secondary to this
problem. (Tr. 335.)
On September 19, 2001, Dr. William Tontz, M.D. completed a
physical residual functional capacity questionnaire for the
Plaintiff. (Tr. 323-27.) Dr. Tontz first saw the Plaintiff on
April 25, 2001. (Tr. 323.) He diagnosed the Plaintiff with
fibromyalgia, ankylosing spondylitis, and hip bursitis. (Tr.
323.) He listed pain to the sacroiliac joints and lumbosacral
spine as clinical findings and objective signs supporting his
diagnosis. (Tr. 323.) Dr. Tontz stated that the Plaintiff was
incapable of even low stress jobs because she had too much pain
and fatigue in too many areas. (Tr. 234.) He stated that
Plaintiff's impairments were likely to produce "good" and "bad"
days, and that Plaintiff would likely miss more than four days of
work per month. (Tr. 327.) Dr. Tontz also indicated that
depression and anxiety would affect the Plaintiff's ability to
work at a regular job on a sustained basis. (Tr. 327.)
On September 25, 2001, Plaintiff returned to Dr. Araya,
concerned about possible complications from her elective stomach
reduction surgery. (Tr. 329.) Dr. Araya noted it appeared
Plaintiff had an accumulation of fluid under the skin, and
recommended that she return to the surgeon who performed the
procedure for further assessment. (Tr. 329.) Testimony
On December 4, 2001, an administrative hearing was conducted.
(Tr. 45-65.) Plaintiff testified that she has not worked since
May 28, 1995, the date of the motor vehicle accident. (Tr. 49.)
She stated that she could not go back to her prior work as a
cosmetologist because her hands and wrists hurt too much. (Tr.
50.) Plaintiff testified that she made one attempt to start an
antique business in 1998, but because of pain, depression, and
loss of concentration she could not maintain her three day per
week schedule. (Tr. 54.) She described how her joints hurt, her
feet hurt, that she suffers from asthma, allergies, anxiety
attacks, and has trouble sleeping. (Tr. 52-53.) She testified
that her pain is worse in the mornings and evenings, and that she
has to lay down in the middle of the day due pain. (Tr. 54-55.)
She estimated that she could walk about a block before needing to
rest, and could stand about 20-30 minutes. (Tr. 54.) She stated
she can squat, bend over, and lift 5 pounds only occasionally.
(Tr. 61-62.) She said she can not repetitively grasp or hold
objects, or write by hand or keyboard because of the pain in her
hands and wrists. (Tr. 62.) She testified that her condition has
worsened and the pain in her hands, neck, and back is constant.
(Tr. 56.) She testified that she lives with her husband and their
two children, ages 4 and 6. (Tr. 48.) She stated that her husband
does much of the cooking, and that they both do the grocery
shopping. (Tr. 55-56.) She said that she has two to four "good
days" a week, where she is able to do light housework and prepare
meals for her children. (Tr. 60.) She stated that on "bad days"
she doesn't feel able to do anything. (Tr. 61.) Plaintiff
testified that she has been depressed off and on since she was a
teenager. (Tr. 58.) She stated that she has suicidal thoughts on
a weekly basis, but characterizes them as "nothing severe." (Tr.
58.) She testified that she has difficulty with thinking and
concentrating, and that she has been hospitalized for panic
attacks. (Tr. 59.)
Dr. Alan Cummings, Ph.D., a vocational expert also testified at
the hearing. (Tr. 62-63.) He testified that Plaintiff's past work
titles include hairstylist as light and skilled, and waitress,
light and unskilled. (Tr. 63.) III.
SUMMARY OF APPLICABLE LAW
Title II of the Social Security Act (hereinafter "the Act"), as
amended provides for the payment of insurance benefits to persons
who have contributed to the program and who suffer from physical
or mental disability. 42 U.S.C. § 423 (a) (1) (E) (2005). The Act
defines disability as the "inability to engage in any substantial
gainful activity by reason of any medically determinable physical
or mental impairment which can be expected to last for a
continuous period of not less than 12 months." § 423 (d) (1) (A).
The Act further provides that:
An individual shall be determined to be under a
disability only if his physical or mental impairment
or impairments are of such severity that he is not
only unable to do his previous work experience but
cannot, considering his age, education, and work
experience, engage in any other kind of substantial
gainful work which exists in the national economy,
regardless of whether such work exists in the
immediate area in which he lives, or whether a
specific job vacancy exists for him, or whether he
would be hired if he applied for work.
§ 423 (d) (2) (A).
The Secretary of the Social Security Administration has
established a five-step sequential evaluation process for
determining whether a person is disabled. 20 C.F.R. §§ 404.1520,
416.920 (2005). Step one determines whether the claimant is
engaged in "substantial gainful activity." § 404.1520(b). If he
is, disability benefits are denied. §§ 404.1520(b), 416.920(b).
If he is not, the decision maker proceeds to step two, which
determines whether the claimant has a medically severe impairment
or combination of impairments. That determination is governed by
the "severity regulation." The severity regulation provides:
If you do not have any impairment or combination of
impairments which significantly limits your physical
or mental ability to do basic work activities, we
will find that you do not have a severe impairment
and are, therefore, not disabled. We will not
consider your age, education, and work experience.
§§ 404.1520(c), 416.920 (c).
The ability to do basic work activities is defined as "the
abilities and aptitudes necessary to do most jobs." §§
404.1521(b), 416.921(b). Such abilities and aptitudes include:
physical functions such as walking, standing, sitting, lifting,
pushing pulling, reaching, carrying, or handling; capacities for
seeing, hearing and speaking; understanding, carrying out, and
remembering simple instructions; use of judgment; responding
appropriately to supervision, co-workers, and usual work
situations; and dealing with changes in a routine work setting.
§§ 404.1521(b)(1)-(6), 416.921(b)(1)-(6).
If the claimant does not have a severe impairment or
combination of impairments, the disability claim is denied. If
the impairment is severe, the evaluation proceeds to the third
step, which determines whether the impairment is equivalent to
one of a number of listed impairments that the Secretary
acknowledges are so severe as to preclude substantial gainful
activity. §§ 404.1520 (d), 416.920 (d). If the impairment meets
or equals one of the listed impairments, the claimant is
conclusively presumed to be disabled. If the impairment is not
one that is conclusively presumed to be disabling, the evaluation
proceeds to the fourth step, which determines whether the
impairment prevents the claimant from performing work he has
performed in the past. If the claimant is able to perform his
previous work, he is not disabled. §§ 404.1520 (e), 416.920 (e).
If the claimant cannot perform his previous work, the fifth and
final step of the process determines whether he is able to
perform work in the national economy in view of his age,
education, and work experience. The claimant is entitled
disability benefits only if he is not able to perform other work.
§§ 404.1520 (f), 416.920 (f).
The Secretary's decision to deny benefits "will be disturbed
only if it is not supported by substantial evidence or it is
based on legal error." Brawner v. Secretary of Health & Human
Services, 839 F.2d 432, 433 (9th Cir. 1987). "`Substantial
evidence' means `more than a mere scintilla' but `less than a
preponderance.' It means `such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.'"
Desrosiers v. Secretary of Health & Human Services,
846 F.2d 573, 576 (9th Cir. 1988). To determine whether substantial
evidence supports the ALJ's decision, the court will review the
administrative record as a whole, "weighing both the evidence
that supports and detracts from the [ALJ]'s conclusion."
Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). The ALJ
is responsible for determining and resolving conflicts in medical
testimony. Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984).
The ALJ is likewise responsible for resolving ambiguities. Id.
The Court must uphold the ALJ's decision where the evidence is
susceptible to more than one rational interpretation. Gallant v.
Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984). In reaching his findings, "the ALJ is
entitled to draw inferences logically flowing from the evidence."
1. Plaintiff's Contention that the ALJ Erred by Not Giving
Controlling Weight to the Opinions of the Treating Physicians
Plaintiff contends the ALJ erred by rejecting the opinions of
three of the treating physicians. Specifically, Plaintiff argues
the ALJ's decision was not supported by substantial evidence. The
Defendant argues that the ALJ properly considered and rejected
the treating doctors' opinions, and the decision was supported by
Generally, greater weight is given to a treating physician's
opinion because "he is employed to cure and has a greater
opportunity to know and observe the patient as an individual."
Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987). However,
in determining a claimant's disability, the ALJ may disregard the
treating physician's opinion whether or not that opinion is
contradicted. Rhodes v. Schweiker, 660 F.2d 722, 723 (9th Cir.
1981). For instance, the ALJ need not accept a treating
physicians opinion which is "brief and conclusory in form with
little in the way of clinical findings to support its
conclusion." Young v. Heckler, 803 F.2d 963, 968 (9th Cir.
1986). To reject the uncontroverted opinion of a claimant's
physician, the ALJ must present clear and convincing reasons for
doing so. Montijo v. Secretary of Health & Human Services,
729 F.2d 599, 601 (9th Cir. 1984).
To reject the opinion of a treating physician which conflicts
with that of an examining physician, the ALJ must make findings
setting forth specific, legitimate reasons for doing so that are
based on substantial evidence of the record. Winans v. Bowen,
853 F.2d 643, 647 (9th Cir. 1987). The ALJ can meet this burden
by setting out a detailed and thorough summary of the facts and
conflicting clinical evidence, stating his interpretation
thereof, and making findings. Miller v. Heckler, 770 F.2d 845,
849 (9th Cir. 1985). However, to the extent that the nontreating
physician's opinion rests on objective clinical tests, it must be
viewed as substantial evidence. Id. In addition, where medical
reports are inconclusive, "questions of credibility and
resolution of conflicts in the testimony are functions solely of
the secretary." Sample v. Schweiker, 694 F.2d 639, 642 (9th
Cir. 1982). In this case the ALJ specifically found that the opinions of
Doctors Ferrari, Weissbein, and Tontz were not entitled to
controlling weight. The ALJ cited the following twelve reasons:
First, the opinions are not well supported, i.e.,
they are not backed by citations to medical signs and
laboratory results as required by SSR 96-4p. Dr.
Ferrari's July 14, 2000, [report] is not supported by
a tender point count and his work assessment is
devoid of citations to medical signs and findings.
Dr. Weissbein's mental impairment questionnaire of
August 30, 2001, lists only the claimant's reported
symptoms and the insurance assessment form of July
31, 2001, does not describe any supporting findings.
The September 19, 2001, residual functional capacity
questionnaire by Dr. Tontz lists only the claimant's
claims of pain to the sacroiliac joints and
lumbosacral spine [as] clinical and objective
Second, the opinions are inconsistent with the
claimant's admission only the day after the May 29,
1995, accident that her pain was well controlled by
oral medications and the opinions are inconsistent
with her discharge from hospitalization on that date.
Third, the opinions are inconsistent with the
claimant's normal cervical and chest x-rays of May
28, 1995; normal right wrist arthrogram of October
21, 1996; unremarkable whole body bone scan of April
29, 1998; normal chest x-ray of March 29, 1999;
normal antinuclear antibody test of December 20,
1999; normal hand x-rays of January 27, 2000; normal
hip x-rays of May 18, 2000; mild pulmonary function
test results of May 26, 2000; normal pulmonary
function test results of June 30, 2000; normal hip
x-rays of July 18, 2000; normal knee x-rays of July
18, 2000; the slight findings of the thoracolumbar
x-rays of March 15, 2001, laboratory results of July
11, 2001, that were negative for the rheumatoid
factor; and the normal chest x-ray of August 21,
Fourth, the opinions are inconsistent with Dr.
Ferrari's finding of July 14, 2000, that the claimant
had normal 5/5 strength in her extremities.
Fifth, the weight given to even a treating
physician's opinion is directly proportional to the
length of the relationship between the physician and
claimant and the frequency of the examination, and
Dr. Ferrari had seen the claimant only since July 14,
2000, when he wrote the September 14, 2000 work
assessment, and Dr. Weissbein had seen the claimant
only since June 1, 2001, when she completed the [sic]
and the insurance assessment form of July 31, 2001,
and the mental impairment questionnaire of August 30,
Sixth, the opinions are inconsistent with Dr.
Joyce's September 19, 2000, finding that the claimant
had a normal gait and his reports that the claimant
had the mild GAF score of 70 and a virtually
unimpaired psychiatric functional assessment.
Seventh, the opinions are inconsistent with Dr.
Michlin's February 15, 2001 report that the claimant
had absolutely normal musculoskeletal and orthopedic
examinations, no specific trigger points, and no
evidence of a mental impairment.
Eighth, the opinions are inconsistent with Dr.
Kozin's finding of June 26, 2001, that the claimant
had a normal gait, intact sensation, and intact
muscle strength with good bulk and tone as well as
only moderate depression and no evidence of
rheumatoid arthritis or a systemic rheumatic
Ninth, the opinions are inconsistent with Dr.
Shikhman's report of July 27, 2001, that the claimant
then had normal 5/5 muscle strength, full extremity
ranges of motion, intact sensation, and no active
synovitis of the small joints of her hands or feet.
Tenth, the opinions are inconsistent with the
failure of the claimant's other physicians to report
her to have significant psychiatric symptoms.
Eleventh, the opinions are inconsistent with the
weight of the record as a whole and are therefore
entitled to reduced weight.
Twelfth, the determination that the claimant is
disabled is an issue reserved to the commissioner and
even treating source opinions on such issues are
never entitled to controlling weight or special
(Tr. 31-32.) (citations omitted). The ALJ fully considered Dr. Ferrari, Dr. Tontz, and Dr.
Weissbein's opinions and found they were not entitled to
controlling weight since they were not well supported by
medically acceptable clinical and laboratory diagnostic
techniques. Lack of supporting clinical findings is a valid
reason for rejecting a treating doctor's opinion. Magallanes v.
Bowen, 881 F.2d 747
, 751 (9th Cir. 1989.) See also Matney
v. Sullivan, 981 F.2d 1016
, 1019-20 (9th Cir. 1992) (treating
physician's opinion may be disregarded where it was based
primarily on medical history and subjective complaints related by
the claimant with minimal examination findings). The ALJ found
neither Dr. Ferrari's nor Dr. Tontz's opinions provided a tender
point count to support their diagnosis of fibromyalgia. The ALJ
further found Dr. Weissbein and Dr. Tontz's opinions were lacking
because they were primarily based on Plaintiff's subjective
complaints and not based on any significant objective findings.
In contrast, the ALJ gave controlling weight to the opinions of
Dr. Kozin and Dr. Shikhman who both reported a tender point
count. On this record, the ALJ's decision to reject the opinions
is supported by substantial evidence.
The ALJ also declined to give the opinions controlling weight
because they were inconsistent with the other substantial
evidence in the record. The Regulations explain, "[i]f we find
that a treating source's opinion on the issue(s) of the nature
and severity of your impairment(s) is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with the other substantial evidence in your case
record, we will give it controlling weight." § 404.1527(d)(2)
(emphasis added). The ALJ gave specific, legitimate reasons why
he found the doctor's opinions were not supported by the record.
The ALJ cited inconsistencies between the opinions and hospital
records from the Plaintiff's accident, as well as inconsistences
between the opinions and numerous normal x-rays and tests. The
ALJ further noted that the opinions were inconsistent with
reports from Dr. Joyce, Dr. Michlin, Dr. Kozin, Dr. Shikhman, and
that Dr. Ferrari's opinion was internally inconsistent. The ALJ
is responsible for resolving conflicts and ambiguities, and the
ALJ may rely on conflicting evidence to reject a treating
physician's opinion. Magallanes, 881 F.2d at 750. Review of the
above-noted doctor's opinions indicates that substantial evidence
supports the ALJ's findings. The Plaintiff argues that the ALJ erred in giving weight
proportional to the length of the treating relationship because
all of the treating physicians saw the Plaintiff for a relatively
short time. The Regulations state that once the ALJ has
determined an opinion is not entitled to controlling weight, the
following factors are considered to determine the weight to give
the opinion: (1) length of the treatment relationship, (2)
nature and extent of the treatment relationship, (3)
supportability, (4) consistency, (5) specialization, and (6)
other factors. § 404.1527(d)(2)-(6) (emphasis added).
Accordingly, the ALJ properly considered the length of the
treatment relationship in assigning weight to the opinions. The
length of Dr. Kozin and Dr. Shikhman's treatment relationship
with the Plaintiff is of no consequence. The ALJ found that the
opinions of Dr. Kozin and Dr. Shikhman were entitled to
controlling weight, thus the ALJ was not required to consider the
factors listed in § 404.1527(d)(2)-(6) with respect to their
The Plaintiff also contends the ALJ erred by rejecting only the
opinions of her treating physicians who addressed her limitations
to engage in gainful activity. The Plaintiff notes that the ALJ
relied on the reports by treating physicians Dr. Kozin and Dr.
Shikhman, who did not assess her ability to engage in gainful
employment. The ALJ stated that the determination of disability
is an issue for the commissioner, and treating physician opinions
on the issue are never entitled to controlling weight. The
Regulations explain physician opinions that a claimant is
disabled are not medical opinions, but are instead opinions on
issues reserved to the ALJ because they are dispositive
administrative findings. § 404.1527 (e). The ALJ will not give
any special significance to the source of an opinion on issues
reserved to the Commissioner. § 404.1527 (e)(3). See also
Nyman v. Heckler, 779 F.2d 528, 533 (9th Cir. 1986) (stating
"[c]onclusory opinions by medical experts regarding the ultimate
question of disability are not binding on the ALJ"); Perez v.
Chater, 17 F. Supp. 2d 1115, 1123 n. 15 (C.D. Cal. 1997) (noting
doctor's opinion that plaintiff was unable to work was not
conclusive). Therefore, the ALJ was not required to give
controlling weight, or special significance to the opinions that
concluded the Plaintiff was disabled.
On the record presented, the Court finds that the ALJ properly
determined the opinions of Dr. Ferrari, Dr. Tontz, and Dr.
Weissbein were not entitled to controlling weight. 2. Plaintiff's Contention that the ALJ Should Have Found that
Plaintiff's Depression Constituted a Severe Impairment
Plaintiff maintains that the ALJ should have found that her
depression constituted a severe impairment. The Defendant
counters that the ALJ properly found the Plaintiff's depression
was nonsevere because she failed to show that the depression
affected her ability to perform basic work requirements.
An impairment is not severe if it does not significantly limit
a claimant's physical or mental abilities to do basic work
activity. §§ 404.1520(c), 404.1521(a). The United States Supreme
Court has recognized that including the severity inquiry at the
second stage of the evaluation process permits the Secretary of
the Social Security Administration to identify efficiently those
claimants whose impairments are so slight that they are not
likely to be found disabled even if the individual's age,
education, and experience are considered. Bowen v. Yuckert,
482 U.S. 137, 153 (1987). However, an overly stringent application of
the severity requirement violates the statute by denying benefits
to claimants who do meet the statutory definition of disabled.
Id. Thus, the sequential evaluation process can be terminated
at step two only in cases where there is no more than a minimal
effect of the claimant's ability to work. Id.
An impairment can be considered as not severe only if it is a
slight abnormality which has such a minimal effect on the
individual that it would not be expected to interfere with the
individual's ability to work, irrespective of age, education, or
work experience. Jones v. Heckler, 597 F. Supp. 210, 211 (N.D.
Cal. 1984). In sum, a severe impairment or severe combination of
impairments are those that significantly limit the climant's
physical or mental abilities to do basic work activities. §
404.1521 (a). Basic work activities are the abilities and
aptitudes necessary to do most jobs. § 404.1521 (b). The mental
abilities necessary for basic work activity are: understanding,
carrying out, and remembering simple instructions; use of
judgment; responding appropriately to supervision, co-workers and
usual work situation; and dealing with changes in a routine work
setting. § 404.1521(b)(3)-(6). Thus, the test is not whether the
claimant is able to do "most jobs;" instead, it is whether the
impairment significantly limits his abilities to perform the
basic work activities necessary to do most jobs. Clemente v.
Schweiker, 564 F. Supp. 271 1983 N.Y. 1983); See Fanning v. Bowen, 827 F.2d 631 (9th Cir. 1986)
(stating that courts have concluded that an impairment
imposes a significant work-related limitation of function when
its effect on a claimant's ability to perform basis work
activities is more than slight or minimal). The ALJ must make
findings as to a claimant's ability to perform basic work
activities. Therefore, a conclusory statement that an impairment
does not significantly limit the claimant's ability to perform
basic work functions and hence the impairment is not severe is
insufficient. Swope v. Heckler, 592 F. Supp. 803 (N.D. Cal.
In this case, the ALJ specifically found the following:
1. The claimant met the disability insured status
requirements of the Act on her alleged disability
onset date of May 29, 1995, and she continued to meet
those requirements only through December 30, 2000.
2. The claimant has not engaged in substantial
gainful activity since her alleged disability onset
3. The evidence establishes that the claimant has the
severe impairment of fibromyalgia and the nonsevere
impairment of a depressive disorder.
4. The claimant's depressive disorder causes her only
a mild restriction of the activities of daily living;
mild difficulties in maintaining social functioning;
mild difficulties in maintaining concentration,
persistence or pace; and no episodes of deterioration
in work or work-like settings. The "C" criteria to
Listing 12.04 are not met.
5. The claimant's impairments, alone or in
combination, have not met or equaled the requirements
of any listing of the Listing of Impairments,
20 C.F.R., Part 404, Subpart P, Appendix 1, Regulations
No. 4, since her alleged disability onset date.
6. Since May 29, 1995, the claimant has had a
residual functional capacity for a full range of
7. The claimant's allegations of disabling pain,
symptoms, and limitation, when considered pursuant to
the law of the Ninth Circuit Court of Appeals, Social
Security Rulings 96-3p, and pertinent regulations,
are not credible and are rejected for reasons stated
in the rationale portion of this decision which are
incorporated by reference herein.
8. The claimant has past relevant work experience as
a waitress (semiskilled/light) and hair stylist
9. The claimant has been able to perform and sustain
her past relevant work as a waitress and hair stylist
since her alleged disability onset date. The
claimant's residual functional capacity does not
preclude the performance of such work.
10. The claimant was thirty-three years old on her
alleged disability onset date and thirty-nine years
of age at the administrative hearing; at all relevant
times, she is a younger person.
11. The claimant has two years of college education;
such an education is defined as high school education
12. The claimant's past work did not provide her with
any transferable work skills.
13. Medical-Vocational Rule 202.21,
20 C.F.R. Part 404, Subpart P, Appendix 2, recommends a finding that
an individual such as the claimant is not disabled.
14. The claimant has been capable of performing and
sustaining her past relevant work as a waitress and
hair stylist as well as other jobs that constitute
substantial gainful activity and exist in significant
numbers in the national economy since her alleged
disability onset date. 15. The claimant has not been under a "disability,"
as defined in the Social Security Act, since her
alleged disability onset date of May 29, 1995.
(Tr. 38-39.) (citations omitted).
The ALJ provided the following rationale in support of his
conclusion that the Plaintiff has only the nonsevere impairment
[T]he record does not show that the claimant has had
repeated episodes of decompensation of extended
duration, a residual disease process that resulted in
such marginal adjustment that even a minimal increase
in mental demands or environmental change would be
predicted to cause the claimant to decompensate, or a
current history of an inability of at least one or
more years to function outside of a highly supportive
living environment. This finding is consistent with
the assessments of Drs. Joyce and Skopec; the failure
of the claimant to receive ongoing psychiatric
treatment; and the failure of her physicians, other
than Dr. Weissbein, to report her to have significant
psychiatric symptoms. Although the claimant was
admitted to Amador County Mental Health on February
1, 2000, for a seventy-two hour hold and was assessed
with major depressive disorder, she told Dr. Joyce on
September 19, 2000, that she believed that the
hospitalization was due to a medication side effect.
Dr. Kozin, on June 26, 2001, assessed the claimant
with only moderate depression.
(Tr. 33-34.) (citations omitted).
The ALJ concluded that Plaintiff's depression does not
significantly limit her mental abilities, and therefore is not
severe. The ALJ rejected the limitations suggested by Dr.
Weissbein, and relied on the opinions of Dr. Joyce and Dr. Kozin.
The ALJ thoroughly analyzed the findings proffered by these
medical experts. Dr. Weissbein opined that the Plaintiff is
limited by marked restriction in activities of daily living,
moderate difficulty in maintaining social functioning, and
frequent deficiencies in concentration, persistence or pace
resulting in failure to compete tasks in a timely manner. (Tr.
322.) However, as previously discussed, the ALJ properly gave
reduced weight to Dr. Weissbein's opinion. Instead, the ALJ
relied on the opinions of Dr. Joyce and Dr. Kozin. Dr. Joyce
found the Plaintiff was fully capable of performing all functions
required for basic work activities. Specifically, Dr. Joyce found
that Plaintiff is able to follow simple and complex instruction;
is able to maintain concentration and attention; is capable of
identifying hazards and taking appropriate precautions; and is
capable responding appropriately to supervision, coworkers, or
the usual work situation including changes in a routine setting.
(Tr. 226.) Dr. Kozin administered the Beck Depression Inventory
to assess Plaintiff's depression. The results indicated only
moderate depression. (Tr. 361.) In support of her position, Plaintiff points out that
depression was referenced throughout the record. However, the
record supports the ALJ's conclusion that none of Plaintiff's
doctors indicated that she had significant psychiatric symptoms.
For example, Dr. Ferrari described the Plaintiff as a "slightly
depressed appearing female in no distress" and Dr. Araya stated
the Plaintiff had a history of "mild depression." (Tr. 233, 344.)
Lastly, the ALJ considered the fact that the Plaintiff was
admitted to the hospital for a suicide attempt. The ALJ noted
that although the Plaintiff was assessed with severe depression,
she later stated that the hospitalization resulted from a
medication side effect. This is consistent with the record. For
example, the Plaintiff reported the incident as a possible side
effect to Dr. Joyce (Tr. 223). She reported to Dr. Ferrari that
the antidepressant depressant Effexor caused her to have
increased depression and she was admitted to a mental hospital
overnight as a result. (Tr. 232.) She reported to Dr. Kozin that
she had very significant adverse effects from antidepressants,
and that she was hospitalized because of suicide ideations. (Tr.
360.) The ALJ provided specific reasons to support his findings
and conclusions, and these conclusions are supported by
substantial evidence in the record. Therefore, this Court finds
that the ALJ did not err in finding the Plaintiff's depression
was not severe.
After reviewing the administrative record as a whole, weighing
both the evidence that supports and detracts from the ALJ's
conclusion, this Court recommends that Plaintiff's Motion for
Summary Judgment be DENIED, and 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 this case, pursuant to the provision of 28 U.S.C. § 636
IT IS ORDERED that no later than December 19, 2005, any
party to this action may file written objections with the Court
and serve a copy on all parties. 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 January 6, 2006.
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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