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GONZALEZ v. BARNHART

United States District Court, S.D. California


December 16, 2005.

MARGARITA GONZALEZ, Plaintiff,
v.
JO ANNE B. BARNHART, Commissioner of the Social Security Administration, Defendant.

The opinion of the court was delivered by: MARILYN HUFF, District Judge

ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT
[Doc. Nos. 11 & 16.]
Plaintiff Margarita Gonzalez ("Plaintiff") brings this action pursuant to § 405(g) of the Social Security Act ("Act") to obtain judicial review and remedy of the final decision of the Commissioner of the Social Security Administration (hereinafter "Defendant") in a claim for Supplemental Security Income benefits under Title XVI of the Act. The motion is submitted on the papers without oral argument pursuant to Civil Local Rule 7.1(d)(1). After careful consideration of the papers, the administrative record and the applicable law, the Court DENIES Plaintiff's motion for summary judgment and GRANTS Defendant's cross-motion for summary judgment.

Procedural History

  Plaintiff filed an application for supplemental security income benefits on May 23, 1994. (Administrative Record ("R") at 93-105.) She alleged that she was disabled due to allergies, leg, back and shoulder pain. (Id. at 94.) Her claim for benefits was denied at both the initial and reconsideration levels. (Id. at 112.) An Administrative Law Judge ("ALJ") held a hearing on March 25, 1998. (Id. at 547.) On July 13, 1998, the ALJ denied Plaintiff's application. (Id. at 189-98.) On September 29, 2000, the Appeals Council initially denied Plaintiff's request for review. (Id. at 200-01.)

  Meanwhile, on October 18, 1999, Plaintiff filed another application for Supplemental Security Income benefits where she alleged she was disabled as of July 21, 1989. (Id. at 249-53.) She alleges she was disabled due to "lumbar problem[s] and complication[s] due to injury." (Id. at 257.) An ALJ held a hearing on February 20, 2002. (Id. at 585.)

  On July 12, 2002, upon Plaintiff's request for reconsideration, the Appeals Council remanded the March 25, 1998 ALJ decision and consolidated Plaintiff's May 23, 1994 and October 18, 1999 applications. (Id. at 42-45; 205.)

  On August 12, 2003, a hearing was held before an ALJ. (Id. at 614.) On October 24, 2003, the ALJ issued a decision denying Plaintiff's consolidated application. (Id. at 22-29.) Plaintiff subsequently sought review by the Appeals Council. (Id. at 14.) On March 3, 2005, the Appeals Council denied review of the ALJ's decision. (Id. at 9.) The ALJ's decision then became the final decision of the Commissioner of Social Security. (Id.)

  On April 4, 2005, Plaintiff filed a civil complaint in this Court seeking to obtain judicial review of the final decision of the Commissioner. Defendant filed an answer on July 20, 2005. On October 13, 2005, Plaintiff filed a motion for summary judgment and on November 18, 2005, Defendant filed an opposition and cross-motion for summary judgment. On December 6, 2005, Plaintiff filed a reply and opposition to Defendant's motion for summary judgment. Factual Background

  Plaintiff was born on February 6, 1955 and has a limited education*fn1 and limited ability to speak and understand English. (Id. at 122, 251, 263, 554, 616.) She has past work experience as a janitor/maintenance worker in 1989. (Id. at 23.) She had an injury at work on October 13, 1987 and hurt her lower back, left leg and neck. (Id. at 555.) Plaintiff stated she has been disabled since June 23, 1989. (Id. at 144, 154.) On July 29, 1994, she had neck and back pain from a slip and fall accident. (Id. at 153-54.) In August 1999, she was treated in an emergency room for left hip pain following a car accident. (Id. at 334.)

  Plaintiff testified that she owns a vehicle and has a driver's license. (Id. at 620.) She receives food stamps and general relief. (Id. at 620-21.) She testified that she cannot work because she has headaches, nausea, stomach and vision problems, pain in both legs, waist, back and arms. (Id. at 621-23.) She makes breakfast for herself and her daughter and does some house chores. (Id. at 624-25.) She attends church functions about four days a week and goes grocery shopping. (Id. at 625.) She states she can lift five or six pounds, can stand for 20 minutes and sit for 20-25 minutes before changing positions. (Id. at 627.)

  ALJ's Findings

  The ALJ found that Plaintiff has not engaged in substantial gainful activity since the alleged onset of disability. (Id. at 28.) He concluded that her hearing and visual impairments do not constitute severe impairments. (Id. at 24.) He determined that Plaintiff's low back disorder and cervical spine disorder are severe impairments but do not meet the impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4. (Id. at 24, 28.) The ALJ rejected Plaintiff's allegations of her limitations as not credible. (Id. at 29.) The ALJ concluded that Plaintiff has the residual functional capacity for light level functioning on a routine and sustained basis. (Id.) Based on Plaintiff's residual functional capacity, age, education, and work experience, the ALJ concluded that Plaintiff was "not disabled" as directed by Medical-Vocational Rule 202.16. (Id.) In conclusion, the ALJ assessed that Plaintiff was not under a "disability" as defined in the Social Security Act. (Id.)

  Discussion

  A. Standard of Review

  Section 205(g) of the Act allows unsuccessful applicants to seek judicial review of a final agency decision of the Commissioner. 42 U.S.C.A. § 405(g). The Commissioner's denial of benefits "will be disturbed only if it is not supported by substantial evidence or is based on legal error." Brawner v. Secretary of Health and Human Servs., 839 F.2d 432, 433 (9th Cir. 1988) (citing Green v. Heckler, 803 F.2d 528, 529 (9th Cir. 1986)).

  Substantial evidence means "more than a mere scintilla" but less than a preponderance. Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997). "[I]t is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). The court must consider the record as a whole, weighing both the evidence that supports and detracts from the Commissioner's conclusions. Id. If the evidence supports more than one rational interpretation, the court must uphold the ALJ's decision. Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). "[Q]uestions 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).

  B. Analysis

  To qualify for disability benefits under the Act, an applicant must show that: (1) he or she suffers from a medically determinable impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of twelve months or more, and (2) the impairment renders the applicant incapable of performing the work that the applicant previously performed and incapable of performing any other substantially gainful employment that exists in the national economy. 42 U.S.C.A. § 423(d). The claimant's impairment must result from "anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).

  The Social Security Regulations (hereinafter "regulations") employ a five step process to determine whether an applicant is disabled under the Act. See 20 C.F.R. § 404.1520. If an applicant is found to be "disabled" or "not disabled" at any step, there is no need to proceed to the subsequent steps. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). The applicant bears the burden of proof as to the first four steps. Id. at 1098. If the fifth step is reached, the burden shifts to the Commissioner. Id. The five steps are as follows:

Step 1. Is the claimant presently working in a substantially gainful activity? If so, then the claimant is "not disabled" within the meaning of the Social Security Act and is not entitled to disability insurance benefits. If the claimant is not working in a substantially gainful activity, then the claimant's case cannot be resolved at step one and the evaluation proceeds to step two.
Step 2. Is the claimant's impairment severe? If not, then the claimant is "not disabled" and is not entitled to disability insurance benefits. If the claimant's impairment is severe, then the claimant's case cannot be resolved at step two and the evaluation proceeds to step three.
Step 3. Does the impairment "meet or equal" one of a list of specific impairments described in the regulations? If so, the claimant is "disabled" and therefore entitled to disability insurance benefits. If the claimant's impairment neither meets nor equals one of the impairments listed in the regulations, then the claimant's case cannot be resolved at step three and the evaluation proceeds to step four.
Step 4. Is the claimant able to do any work that he or she has done in the past? If so, then the claimant is "not disabled" and is not entitled to disability insurance benefits. If the claimant cannot do any work he or she did in the past, then the claimant's case cannot be resolved at step four and the evaluation proceeds to the fifth and final step.
Step 5. Is the claimant able to do any other work? If not, then the claimant is "disabled" and therefore entitled to disability insurance benefits. If the claimant is able to do other work, then the Commissioner must establish that there are a significant number of jobs in the national economy that claimant can do. There are two ways for the Commissioner to meet the burden of showing that there is other work in "significant numbers" in the national economy that claimant can do: (1) by the testimony of a vocational expert, or (2) by reference to the Medical-Vocational Guidelines. . . . If the Commissioner meets this burden, the claimant is "not disabled" and therefore not entitled to disability insurance benefits. If the Commissioner cannot meet this burden, then the claimant is "disabled" and therefore entitled to disability insurance benefits.
Id. at 1098-99 (footnotes and citations omitted).

  C. Whether Plaintiff's Visual and Hearing Impairments Are Severe and Whether Plaintiff's Impairments Meet or Equal a Listing

  Plaintiff argues that the ALJ erred in concluding that Plaintiff's visual and hearing impairments are not severe and that Plaintiff's impairments do not meet or equal a Listing. (R. at 24, 28.)

  1. Severe Impairments

  At the second step, the inquiry is a de minimis screening device to dispose of groundless claims. Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). Plaintiff bears the burden to establish that he has a severe impairment. Tackett, 180 F.3d at 1098. An impairment is "not severe if it does not significantly limit your physical or mental ability to do basic work activities." 20 C.F.R. §§ 404.1521(a), 416.921(a). Basic work activities are abilities required to do most jobs, including, for example, walking, standing, lifting, pushing, understanding, carrying out and remembering simple instructions, responding appropriately to supervision, co-workers and usual work situations and dealing with changes in a routine work setting. 20 C.F.R. §§ 404.1521(b), 416.921(b).

  The ALJ "must consider the combined effect of all of the claimant's impairments on her ability to function, without regard to whether each alone was sufficiently severe." Smolen, 80 F.3d at 1290; see also 42 U.S.C. § 423(d)(2)(B). The ALJ is also required to consider the claimant's subjective symptoms, such as pain or fatigue, in determining severity. Id. An impairment or combination of impairments can be found "not severe" only if the evidence establishes a slight abnormality that has "no more than a minimal effect on an individual's ability to work." Id. In January 1999, Plaintiff was diagnosed with a hearing impairment. (R. at 327.) Upon receiving bilateral hearing aids in March 1999, she was capable of hearing and understanding conversational level speech. (Id. at 329.) No other medical records were submitted showing that Plaintiff has continued problems with her hearing. At the February 20, 2002 hearing, Plaintiff indicated her hearing aids were not working, but was later able to understand and respond to the ALJ's questions. (Id. at 588-89.) At the hearing in August 2003, Plaintiff was able to understand and respond to the ALJ's questions through an interpreter without any problems. (Id. at 616-30.)

  On June 27, 2003, Plaintiff was diagnosed with narrow angle glaucoma. (Id. at 538.) She testified that she has had three surgeries in one eye and one surgery in the other eye and that she has continued problems with her vision. (Id. at 622.) No medical records were submitted regarding the status of glaucoma or vision after her surgeries. At the August 2003 hearing, Plaintiff testified that she has a vehicle and driver's license and that she drove to the hearing. (Id. at 620, 626.) She also states she attends studies at her church and reads. (Id. at 625-26.)

  Based on the evidence in the record, it appears that Plaintiffs hearing and visual impairments do not constitute severe impairments that would preclude Plaintiff from performing basic work activities.

  2. Listing 1.05C

  Plaintiff also argues that her impairments meet Listing 1.05C.*fn2 Listing 1.05C provides:

C. Other vertebrogenic disorders (e.g., herniated nucleus puplosus, spinal stenosis) with the following persisting for at least 3 months despite prescribed therapy and expected to last 12 months. With both 1 and 2:
1. Pain, muscle spasm, and significant limitation of motion in the spine; and
2. Appropriate radicular distribution of significant motor loss with muscle weakness and sensory and reflex loss.
20 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.05C (2001). Vertebrogenic disorders is an impairment due to "distortion of the bony and ligamentous architecture of the spine or impingement of a herniated nucleus pulposus or bulging annulus on a nerve root." Id. § 1.00B. A determination of medical equivalence must be supported by medical findings that is based on "medically acceptable clinical and laboratory diagnostic techniques." 404 C.F.R. § 1526(b). Plaintiff must not only show she has a diagnosis of the listed impairment but must show she has the severity and durational requirements of the listing. Young v. Sullivan, 911 F.2d 180, 183-84 (9th Cir. 1990).

  The Court concludes that the record contains a history of neck and left thigh pain supported by medical evidence but Plaintiff's impairments do not meet the severity and durational requirements of Listing 1.05C.

  i. Treating Physicians

  On July 29, 1994, Plaintiff had a slip and fall accident and treated at the emergency room at Kaiser Permanente. (R. at 150.) On August 4, 1994, Plaintiff began treatment at Chatsworth Canoga Medical Group regarding her condition due to the fall. (Id. at 158.) On August 4, 1994, Dr. Drickman assessed that she had a normal cervical spine series and her thoracic spin appeared normal without evidence of fracture or dislocation. (Id.)

  On September 23, 1994, Gerald Schmitt, D.C., a chiropractor at Chatsworth Canoga Medical Group, saw the claimant for neck, mid and lower back pain with left radiculitis. (Id. at 150.) Schmitt concluded cervical strain/sprain with myospasm and joint dysfunction, thoracic segmental dysfunction and left sacrolliac strain/sprain with myospasm and trigger points in the lumbar spine accompanied by joint fixation and left sciatic neuritis. (Id. at 151-52.)

  In a report dated October 19, 1994, Dr. James Green, a surgeon at Chatsworth Canoga Medical Group, described Plaintiff's history of treatment at Chatsworth after her slip and fall accident in July 1994. (Id. at 153-57.) Plaintiff complained of constant neck pain and aching with radiation to the tops of the shoulders and into the shoulder blade areas with numbness and tingling at the base of the head aggravated by physical activity. (Id. at 153.) She also complained of constant pain and burning in the mid and lower back with radiation down the right leg to the knee and down the left leg to the foot. There was numbness and tingling in the back and down the left lower extremity of the foot and continued episodes of nausea. (Id. at 154.)

  Dr. Green diagnosed her as having myofascial ligamentous sprain of the cervical spine, musculoligamentous sprain of the thoracic spine and lumbosacral myofascial ligamentous sprain with intermittent nerve root irritation. (Id. at 155-56.) The x-rays of her lumbosacral spine and cervical spine failed to reveal any significant bony abnormalities and x-rays of the thoracic spine revealed a very minimal rotatory scoliosis. (Id. at 155.) Despite her different treatments and evaluations by the medical group, only slight improvement was noted and she was still symptomatic in all areas. Therefore, Dr. Green referred her to Gerald Schmitt for chiropractic care. (Id. at 156.)

  On August 2, 1999, Plaintiff was seen by Dr. Leslie Mukau in the emergency room because of left hip pain due to a car accident. (Id. at 334-35.) Dr. Mukau noted a history of chronic left hip pain and musculoskeletal pain and history of herniated discs. (Id. at 334.) X-rays of the C-spine, lumbosacral spine, pelvis and left hip were normal. (Id. at 335.) Dr. Mukau diagnosed her with multiple contusions, status post motor vehicle accident and chronic left hip pain. (Id. at 335.)

  Dr. Mervat Kelada, a family practice doctor, began treating Plaintiff in March 1999. (Id. at 381). A CT scan of the cervical spine conducted on August 10, 1999 was normal. (Id. at 374.) On December 2, 1999, he diagnosed her with mild spinal stenosis at L4-L5 level, degenerative disk disease at the L5-S1 level. (Id. at 356.) In a letter dated February 18, 2002, he concluded that Plaintiff was suffering from partial deafness and spinal stenosis of L4-L5. (Id. at 486.) In October 2002, Dr. Kelada assessed that Plaintiff can stand/walk 2-4 hours in an 8 hour day, cannot lift 10 pounds, cannot stoop, kneel, crouch, crawl and can occasionally climb, balance and reach waist to knees, waist to chest and chest to shoulders, and can frequently reach below the knees. (Id. at 540-41.)

  Dr. Thushar Doshi, an orthopedic doctor, was also Plaintiff's treating physician but provided only a half page checklist of questions dated March 2002 that states that Plaintiff has a medically verifiable condition that would limit her ability to work. (Id. at 54.)

  Dr. Andres Jacobo, a neurologist, was Plaintiff's treating physician from January 18, 2000 until August 9, 2001. (Id. at 466.) On January 6, 2002, he provided a detailed report reviewing his treatment records and numerous diagnostic tests. (Id.) Plaintiff came in with a history of pain in the left lower extremity and in her cervical spine due to an accident at work in 1987 where she was hit by an exercise machine which crushed her left leg. (Id.) At the initial examination, Plaintiff had difficulty walking on heels and toes, had decreased sensation in the back of the left calf and the dorsum and inner part of the left foot. (Id.) She had positive straight leg and normal coordination. (Id.) Dr. Jacobo initially thought that Plaintiff had a left sciatica and cervical spine pain related to the work accident. (Id. at 466-67.) Dr. Jacobo also noted Plaintiff's cervical spine pain caused by a slip and fall accident in 1987. (Id. at 469.)

  On August 9, 2001, Dr. Jacobo discharged her from his care and referred her to University of California, San Diego for a second opinion and further treatment since the medication was not working and her complaints of pain continued. (Id. at 468.) He concluded that Plaintiff may be able to lift more than 10 pounds but only occasionally, stand less than 2 hours in an 8 hour day, may be able to stand less than 20 minutes at a time. (Id.) He concluded that due to her pain and left leg injury, Plaintiff is unable to work. (Id.)

  ii. Diagnostic Tests

  On April 6, 1998, an MRI of the lumbar spine showed a slight face hypertrophy at L4-L5 and minimal bulging of the L5-S1 disc. (Id. at 182, 317, 485.) On January 29, 1998, a CT scan of the lumbar spine indicated mild to borderline spinal stenosis at L3-4. (Id. at 178, 322.) On August 3, 1999, another CT scan of the lumbar spine was normal and unchanged from the January 29, 1998 exam. (Id. at 378.) On August 10, 1999, a CT scan of the cervical spine was normal. (Id. at 374.) On December 8, 1999, a CT scan of the cervical spine showed mild degenerative change at C5-6 and C6-7. (Id. at 403.)

  An EMG and nerve conduction study conducted on December 7, 1999 was normal. (Id. at 461.) On January 24, 2000, an EMG and nerve conduction study of the bilateral lower extremities was normal. (Id. at 456.) On April 10, 2001, an EMG and nerve conduction study of the right upper extremity revealed a possible remote right C8-T1 cervical radiculopathy and no evidence of median neuropathy, peripheral neuropathy or ulnar neuropathy. (Id. at 442, 478-81.)

  On September 11, 2000, an MRI of the thigh revealed "atrophy to the extensor muscles of the left thigh without abnormality seen along the course of the left sciatic nerve. The findings suggest a more proximal innervation problem." (Id. at 451.)

  On April 24, 2001, an MRI of the cervical spine revealed retrolisthesis at C5-C6 with broad disc bulging narrowing entrance of the left neural foramen and narrowing of the central canal in the AP dimension and a mile central canal, C6-C7. (Id. at 506-07.) Another MRI of the cervical spine on August 15, 2001 revealed no significant change from the April 24, 2001 MRI. (Id. at 475.) On January 4, 2002, an MRI of the pelvic, hip area and the lumbar spine did not detect any abnormalities. (Id. at 472.)

  iii. Consultative Exams

  On August 10, 1994, Dr. Jeffrey Scott Smith, an orthopedic surgeon, conducted a consultative exam. (Id. at 144.) He noted that Plaintiff has complaints of neck and lower back pain as a result of a slip and fall injury in 1987. (Id.) She complains that the pain is sharp and burning in nature and aggravated by sitting, standing, bending or lifting. (Id.) He notes that she is able to walk without assistive devices. (Id.) He notes her gait is normal with normal swing and stance phases. (Id. at 145.) He concluded that there was no evidence of radiculopathy, chronic neurologic compression, strain, sprain or other significant musculoskeletal disorder. (Id. at 147.)

  On May 18, 1998, Dr. Thomas Schweller, a board certified neurologist, conducted a neuro-orthopedic consultative exam of Plaintiff. (Id. at 184.) He concluded that Plaintiff has musculoligamentous sprain of the cervical spine and musculoligamentous sprain of the lumbar spine, with possible lumbar disc disease and a left S1 radiculopathy. (Id. at 186.) He concluded that Plaintiff would be able to sit, stand, or walk for six hours out of an eight-hour day, lift 20 pounds occasionally and 10 pounds frequently with occasional limits in bending, stooping and squatting. She would have no kneeling or crawling limitations. She would have no upper extremity, fine or gross manipulation limitations. (Id. at 186.)

  Dr. Schweller conducted another examination on September 5, 2000. (Id. at 429.) He diagnosed her as having a sprain of the lumbar spine, left greater than right, with possible lumbar disc disease. (Id. at 431.) He assessed her residual functional capacity to be the same as his initial report. (Id.)

  On September 15, 2000, Dr. Albert Lizarraras, a nonexamining consultant assessed Plaintiff's residual functional capacity. (Id. at 432-39.) Based on his review of the medical records, he concluded that Plaintiff can sit, stand and walk about six hours in an eight hour day, occasionally lift 20 pounds, frequently lift 10 pounds, can push or pull with no limitations, can kneel and crawl and occasionally can climb, balance, stoop and crouch. (Id. at 433-34.) He also concluded that Plaintiff had no upper extremity or gross manipulation limitations and no visual or communicative limitations. (Id. at 435-38.)

  iv. Conclusion

  The medical records do not support a finding that Plaintiff experienced significant motor loss with muscle weakness or sustained reflex loss and a significant limitation of motion in the spine which is expected to last 12 months. See 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.05C (2001); see also Young, 911 F.2d at 183-84 (mere diagnosis of a listed impairment is not sufficient to sustain a finding of disability; claimant must show that his impairment meets the severity and durational requirements of the listing and that he suffers from all the listed symptoms).

  Some of the tests show that Plaintiff may meet a diagnosis under Listing 1.05C. (See R. at 451, 478-81, 506-07.) However, Plaintiff does not meet the severity and durational requirements of the Listing. First, other diagnostic tests revealed no abnormalities. For example, on January 29, 1998 and August 3, 1999, CT scans of the lumbar spine were normal. (Id. at 178, 378.) On August 10, 1999, a CT scan of the cervical spine was normal. (Id. at 374.) An MRI of the hip area and lumbar spine was normal on January 4, 2002. (Id. at 472.)

  Second, the record does not demonstrate Plaintiff has significant limitation of motion in the spine and does not have significant motor loss with muscle weakness and sensory and reflex loss. On August 10, 1994, Dr. Smith noted her motor strength and range of motion were normal as to her hips, shoulders, neck and back. (Id. at 146-47.) On May 18, 1998, Dr. Schweller noted slight limitation in Plaintiff's flexion and extension of the back range of motion but every other range of motion was normal. (Id. at 185.) At the second consultative exam on September 5, 2000, the flexion and extension of the back range of motion was more restricted but Dr. Schweller noted that range of motion was full in the upper and lower extremities. (Id. at 430.) He noted that the range of motion was full in the upper and lower extremities. (Id.) Dr. Schweller noted Plaintiff's gait was unremarkable. (Id. at 185; 430.) Plaintiff also testified she can drive, cook, perform light house cleaning and goes grocery shopping. (Id. at 620, 624-25.) This demonstrates that Plaintiff does not have significant limitation of motion in the spine and does not have "significant motor loss with muscle weakness and sensory and reflex loss." See 20 C.F.R. Pt. 404, Subpt. P, App.1 § 1.05C (2001). Therefore, the Court concludes that Plaintiff's impairments do not meet Listing 1.05C.

  D. Whether the ALJ Failed to Develop the Record

  Plaintiff argues that the ALJ failed to fully and fairly develop the record because he did not follow the Appeals Council's remand. In general, the ALJ has a "duty to develop the record fully and fairly and to ensure that the claimant's interests are considered, even when the claimant is represented by counsel." Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001). On July 12, 2002, the Appeals Council remanded the matter for additional proceedings. (R. at 42-45.) On remand, the ALJ accepted updated medical records from Plaintiff, held a hearing on August 12, 2003, and issued a detailed decision denying Plaintiff's consolidated application on October 24, 2003. (Id. at 22-29, 614.) Plaintiff subsequently sought review by the Appeals Council. (Id. at 14.) On March 3, 2005, the Appeals Council denied review of the ALJ's decision upholding the decision of the ALJ. (Id. at 9.) When the Appeals Council denied review, the ALJ's decision became the final decision of the Commissioner of Social Security. See Russell v. Bowen, 856 F.2d 81, 83 (9th Cir. 1988). Accordingly, the Court concludes that the ALJ fully and fairly developed the record.

  E. Whether the ALJ's Decision is Supported by Substantial Evidence

  Plaintiff asserts that the ALJ's decision is not supported by substantial evidence. Specifically, she argues that the ALJ disregarded the opinion of the treating physicians, Dr. Jacobo and Dr. Kelada, without providing specific and legitimate reasons based on substantial evidence in the record. Plaintiff also contends that the ALJ improperly rejected Plaintiff's subjective complaints.

  1. Rejecting Treating Physician's Opinion

  In general, a treating physician's opinion is given more weight than the opinion of an examining physician and the opinion of an examining physician is given more weight than a nonexamining physician.*fn3 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). If there is a conflict between a treating physician's opinion and another physician, the ALJ may "disregard the opinion of the treating physician only if he sets forth `specific and legitimate reasons supported by substantial evidence in the record for doing so.'" Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001); see also Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). When "the opinion of the claimant's treating physician is contradicted, and the opinion of a nontreating source is based on independent clinical findings that differ from those of the treating physician, the opinion of the nontreating source may itself be substantial evidence; it is then [becomes] solely the province of the ALJ to resolve the conflict." Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)).

  Here, the ALJ rejected the treating opinions of Dr. Jacobo and Dr. Kelada's disability assessment in favor of the examining medical consultant, Dr. Thomas Schweller and the nonexamining medical consultant, Dr. Lizarraras. (R. at 24, 26.) The ALJ rejected Dr. Jacobo's opinion explaining that Dr. Jacobo's opinion was largely based on Plaintiff's subjective complaints and an MRI of the left thigh. (Id. at 26.) As to Dr. Kelada, the ALJ explained that Dr. Kelada's diagnosis of anemia was a transitory problem amenable to iron supplements and as to the right shoulder, there was no evidence that Plaintiff had undergone any definitive work-up on the joint and no diagnostic tests. (Id. at 27.) He also noted that both doctors had different assessments about Plaintiff's inability to work. Dr. Jacobo concluded Plaintiff's left leg caused her to be disabled while Dr. Kelada, concluded it was due to her anemia and osteoarthritis. (Id. at 26.) Therefore, the ALJ relied on the reports of the examining consultative physician and the non-examining medical consultant. Both physicians concluded that she was capable of light level functioning. (Id. at 27.)

  The Court concludes that the ALJ's decision is supported by substantial evidence. Dr. Jacobo and Dr. Kelada focused on different impairments in assessing her condition. Dr. Jacobo also based his decision on Plaintiff's subjective complaints of pain. He wrote, "[w]ith the pain she suffers, I don't think she can be employed and be able to keep a job." (Id. at 468.) The record also supports the ALJ's conclusion. On January 29, 1998 and August 3, 1999, CT scans of the lumbar spine were normal. (Id. at 178, 378.) On August 10, 1999, a CT scan of the cervical spine was normal. (Id. at 374.) On January 24, 200, an EMG and nerve conduction study of the bilateral lower extremities was normal. (Id. at 456.) On January 4, 2002, an MRI of the pelvic, hip area and the lumbar spine did not detect any abnormalities. (Id. at 472.) Dr. Jacobo also noted the normal diagnostic tests and appeared to focus his conclusions on her subjective complaints of pain. Dr. Schweller examined Plaintiff two times and both Dr. Schweller and Dr. Lizarraras similarly concluded that Plaintiff can perform light work. The Court concludes that the ALJ's reasons for rejecting the treating physicians is supported by substantial evidence in the record.

  2. Plaintiff's Subjective Complaints of Pain

  In deciding whether to accept a claimant's subjective symptom testimony, an ALJ must perform two stages of analysis. See Smolen v. Chater, 80 F.3d 1273 (9th Cir. 1996). The first stage of analysis is a threshold test set forth in Cotton v. Bowen, 799 F.2d 1403 (9th Cir. 1986). Under this test, the claimant must (1) produce objective medical evidence of an impairment or impairments; and (2) show that the impairment or combination of impairments could reasonably be expected to produce some degree of symptom. Id. at 1407-08.

  If the claimant satisfies the Cotton test and there is no evidence of malingering, the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so. Smolen, 80 F.3d at 1281. A general finding is not enough; instead, the ALJ "must identify what testimony is not credible and what evidence undermines the claimant's complaints." Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). When evidence reasonably supports either confirming or reversing an ALJ's decision, the Court cannot substitute its judgment for that of the ALJ. Tackett, 180 F.3d at 1098.

  Plaintiff has produced some objective medical evidence of her impairments. An MRI of the left thigh dated September 11, 2000 shows muscle atrophy. (R. at 451.) On April 24, 2001, an MRI of the cervical spine revealed retrolisthesis at C5-C6 with broad disc bulging and narrowing of the central canal in the AP dimension and a mild central canal, C6-C7. (Id. at 506-07.) An MRI of the cervical spine on August 15, 2001 showed broad bulging disc at C5-C6. (Id. at 475.) An EMG and nerve conduction study on April 10, 2001 of the right upper extremity revealed possible remote right C8-T1 cervical radiculopathy. (Id. at 478-81.)

  The ALJ noted her conflicting testimony as to her education background, her evasive answers at the hearing and her conflicting testimony regarding the ownership of two motor vehicles. (Id. at 27.) He noted that during the August 2003 hearing, she appeared to be exaggerating her symptoms to the extent that by the end of the hearing, her left heel was the only part of her body that did not cause her excruciating pain. (Id.) The ALJ provided specific, clear and convincing reasons why he rejected the opinion testimony of Plaintiff. Accordingly, the Court concludes that the ALJ's rejection of Plaintiff's subjective testimony was supported by substantial evidence.

  F. Whether the ALJ Was Required to Obtain the Testimony of a Vocational Expert When Applying the Guidelines

  Plaintiff argues that the ALJ improperly used the Medical Vocational Guidelines ("Guidelines") in assessing Plaintiff's residual functional capacity and failed to use a vocational expert due to Plaintiff's non-exertional impairment of pain.

  An exertional limitation affects one's ability to meet the strength demands of a job. 20 C.F.R. § 404.1569(a) (2005). Pain is considered an exertional limitation when it affects one's ability to meet the strength demands of a job such as sitting, standing, walking, lifting, carrying, pushing and pulling. Id. § 404.1569(b). The ALJ may used the Guidelines if the limitation is exertional. Id. Pain is considered a non-exertional limitation if it affects demands of a job other than a strength requirement such as whether one has difficulty performing manipulative or postural functions such as reaching, handling, stooping, climbing, crawling or crouching. Id. § 404.1569(c). The ALJ may not use the Guidelines if the limitation is non-exertional. Id.

  The ALJ determined that Plaintiff could perform a full range of light work "on a routine and sustained basis" essentially stating that Plaintiff's non-exertional functional limitation did not significantly limit the range of work described in the Guidelines. (R. at 27.) Light work requires "occasional bending of the stooping kind." Social Security Ruling 83-14. Certain non-exertional limitations have no effect on unskilled, light work. Id. These include the "inability to ascend or descend scaffolding, poles and ropes; [and] inability to crawl on hands and knees. . . ." Id. Dr. Lizarraras determined that Plaintiff can occasionally climb, balance, stoop and crouch and frequently kneel and crawl. (R. at 434.) Therefore, Plaintiff's non-exertional limitations do not significantly limit the demands of performing light work. Since there is substantial evidence that Plaintiff does not have a significant non-exertional limitation precluding light work, the ALJ properly applied the Guidelines and testimony from a vocational expert was not required.

  Conclusion

  After a thorough review of the record and the papers submitted and based on the reasons set forth above, the Court DENIES Plaintiff's motion for summary judgment and GRANTS Defendant's cross-motion for summary judgment.

  IT IS SO ORDERED.

20051216

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