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United States District Court, S.D. California

November 18, 2005.

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

The opinion of the court was delivered by: LEO PAPAS, Magistrate Judge

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 the Court.



  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

  Medical Evidence

  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. 280.)

  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. (Tr. 226.)

  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.


  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." Id.

  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 substantial evidence.

  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 findings.
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, 2001.
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, 2001.
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 disorder.
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 significance.
(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 opinions.

  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. 1984).

  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 date.
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 light exertion.
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 (skilled/light).
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 and above.
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 of depression:

[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 (b)(1).

  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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