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Moore v. Astrue


May 13, 2009


The opinion of the court was delivered by: Rosalyn M. Chapman United States Magistrate Judge


Plaintiff Marian L. Moore filed a complaint on March 12, 2008, seeking review of the Commissioner's decision denying her application for disability benefits. On July 24, 2008, the Commissioner answered the complaint, and the parties filed a joint stipulation on November 3, 2008.



On August 20, 2004 (protective filing date), plaintiff applied for disability benefits under the Supplemental Security Income program ("SSI") of Title XVI of the Social Security Act ("Act"), claiming an inability to work due to lupus and chronic depression. Certified Administrative Record ("A.R.") 19, 50, 60. The plaintiff's application was initially denied on April 14, 2005, and, following reconsideration, was denied again on August 21, 2005. A.R. 37-48. The plaintiff then requested an administrative hearing, which was held before Administrative Law Judge Sally C. Reason ("the ALJ") on May 22, 2006. A.R. 49, 164-86. On June 21, 2006, the ALJ issued a decision finding plaintiff is not disabled. A.R. 16-25. The plaintiff appealed this decision to the Appeals Council, which denied review on January 22, 2008. A.R. 5-8, 15.


The plaintiff, who was born on May 13, 1969, is currently 40 years old. A.R. 166, 168. She has an eleventh- or twelfth-grade education,*fn1 and previously worked as a data collector, telemarketer, and cashier/checker. A.R. 61-62, 64, 100, 166, 168-70.

David Mohamadi, M.D., treated plaintiff between April 22, 2002, and May 18, 2006, and diagnosed her with systemic lupus erythematosus,*fn2 inflammatory joint disease, myalgia, and obesity, among other conditions.*fn3 A.R. 116-26, 138-54. On May 18, 2006, Dr. Mohamadi opined plaintiff's "physical function is limited to 2-3 [hours] of work per day and no lifting over 20 [pounds]." A.R. 138.

On December 16, 2002, April 29, 2003, and May 27, 2005, Albert R. Katz, M.D., a rheumatologist, examined plaintiff and diagnosed her with systemic lupus erythematosus and fibromyalgia.*fn4 A.R. 114, 156-57.

On February 23, 2005, Alexander Michaelson, M.D., an internist, examined plaintiff and diagnosed her with lupus, generalized arthralgia, back pain with decreased range of motion and minimal muscle tenderness, and moderate obesity. A.R. 101-05. Dr. Michaelson opined:

[plaintiff] is able to push, pull, lift, and carry 50 pounds occasionally and 25 pounds frequently. Walking and standing can be done six hours in an eight-hour workday with normal breaks. No assistive devices are required for ambulation. Sitting is unrestricted. Postural activities, i.e., bending, kneeling, stooping, crawling, and crouching can be done on an occasional basis. Activities requiring agility, such as walking on uneven terrain, working at heights, and climbing ladders can be done on an occasional basis. Use of hands for fine and gross manipulative movements is unrestricted. Hearing and seeing are unrestricted. There are no environmental restrictions.

A.R. 104.



The Court, pursuant to 42 U.S.C. § 405(g), has the authority to review the Commissioner's decision denying plaintiff disability benefits to determine if his findings are supported by substantial evidence and whether the Commissioner used the proper legal standards in reaching his decision. Sam v. Astrue, 550 F.3d 808, 809 (9th Cir. 2008) (per curiam); Vasquez v. Astrue, 547 F.3d 1101, 1104 (9th Cir. 2008). "In determining whether the Commissioner's findings are supported by substantial evidence, [this Court] must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001). "Where the evidence can reasonably support either affirming or reversing the decision, [this Court] may not substitute [its] judgment for that of the Commissioner." Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007), cert. denied, 128 S.Ct. 1068 (2008); Vasquez, 547 F.3d at 1104.

The claimant is "disabled" for the purpose of receiving benefits under the Act if she is unable to engage in any substantial gainful activity due to an impairment which has lasted, or is expected to last, for a continuous period of at least twelve months. 42 U.S.C. § 1382c(a)(3)(A); 20 C.F.R. § 416.905(a). "The claimant bears the burden of establishing a prima facie case of disability." Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995), cert. denied, 517 U.S. 1122 (1996); Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996).

The Commissioner has promulgated regulations establishing a five-step sequential evaluation process for the ALJ to follow in a disability case. 20 C.F.R. § 416.920. In the First Step, the ALJ must determine whether the claimant is currently engaged in substantial gainful activity. 20 C.F.R. § 416.920(b). If not, in the Second Step, the ALJ must determine whether the claimant has a severe impairment or combination of impairments significantly limiting her from performing basic work activities. 20 C.F.R. § 416.920(c). If so, in the Third Step, the ALJ must determine whether the claimant has an impairment or combination of impairments that meets or equals the requirements of the Listing of Impairments ("Listing"), 20 C.F.R. § 404, Subpart P, App. 1. 20 C.F.R. § 416.920(d). If not, in the Fourth Step, the ALJ must determine whether the claimant has sufficient residual functional capacity despite the impairment or various limitations to perform her past work. 20 C.F.R. § 416.920(f). If not, in Step Five, the burden shifts to the Commissioner to show the claimant can perform other work that exists in significant numbers in the national economy. 20 C.F.R. § 416.920(g).

Applying the five-step sequential evaluation process, the ALJ found plaintiff has not engaged in substantial gainful activity since the alleged onset of disability. (Step One). The ALJ then found plaintiff has systemic lupus erythematosus and obesity, which are severe impairments, but her depression is not severe (Step Two);*fn5 and plaintiff does not have an impairment or combination of impairments that meets or equals a Listing. (Step Three). Finally, the ALJ determined plaintiff can perform her past relevant work as a cashier/checker and telemarketer; therefore, she is not disabled. (Step Four).


The Step Two inquiry is "a de minimis screening device to dispose of groundless claims." Smolen, 80 F.3d at 1290; Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005). Including a severity requirement at Step Two of the sequential evaluation process "increases the efficiency and reliability of the evaluation process by identifying at an early stage those claimants whose medical impairments are so slight that it is unlikely they would be found to be disabled even if their age, education, and experience were taken into account." Bowen v. Yuckert, 482 U.S. 137, 153, 107 S.Ct. 2287, 2297, 96 L.Ed. 2d 119 (1987). However, an overly stringent application of the severity requirement violates the Act by denying benefits to claimants who do meet the statutory definition of disabled. Corrao v. Shalala, 20 F.3d 943, 949 (9th Cir. 1994).

A severe impairment or combination of impairments within the meaning of Step Two exists when there is more than a minimal effect on an individual's ability to do basic work activities. Webb, 433 F.3d at 686; Mayes v. Massanari, 276 F.3d 453, 460 (9th Cir. 2001); see also 20 C.F.R. § 416.921(a) ("An impairment or combination of impairments is not severe if it does not significantly limit [a person's] physical or mental ability to do basic work activities."). Basic work activities are "the abilities and aptitudes necessary to do most jobs," including physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying or handling, as well as the capacity 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. 20 C.F.R. § 416.921(b); Webb, 433 F.3d at 686. If the claimant meets her burden of demonstrating she suffers from an impairment affecting her ability to perform basic work activities, "the ALJ must find that the impairment is 'severe' and move to the next step in the SSA's five-step process." Edlund v. Massanari, 253 F.3d 1152, 1160 (9th Cir. 2001) (emphasis in original); Webb, 433 F.3d at 686.

The plaintiff contends the ALJ's Step Two determination that she does not have severe fibromyalgia is not supported by substantial evidence. The Court disagrees. The record shows only that Dr. Katz diagnosed plaintiff with fibromyalgia, A.R. 114, 156; it does not show that plaintiff's fibromyalgia has any effect on her ability to perform basic work activities. Therefore, this claim is without merit. See, e.g., Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999) ("Although the [claimant] clearly does suffer from diabetes, high blood pressure, and arthritis, there is no evidence to support his claim that those impairments are 'severe.'"); Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993) ("The mere existence of an impairment is insufficient proof of a disability."); Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988) (per curiam) ("The mere diagnosis of [an ailment] . . . says nothing about the severity of the condition.").


A claimant's residual functional capacity ("RFC") is what she can still do despite her physical, mental, non-exertional, and other limitations. Mayes, 276 F.3d at 460; Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). Here, the ALJ found plaintiff has the RFC for light work*fn6 since she can lift 20 pounds occasionally, lift and carry 10 pounds frequently, and stand and walk for 6 hours in an 8-hour day. A.R. 24. However, plaintiff contends the ALJ's RFC finding, and ultimate decision to deny disability, are not supported by substantial evidence because the ALJ improperly rejected the opinions of her treating physician Dr. Mohamadi, failed to properly assess her systemic lupus erythematosus and obesity, and erroneously determined she was not a credible witness.

A. Treating Physician's Opinion:

The medical opinions of treating physicians are entitled to special weight because the treating physician "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); Morgan v. Comm'r of the Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999). Therefore, the ALJ must provide clear and convincing reasons for rejecting the uncontroverted opinion of a treating physician, Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008); Reddick, 157 F.3d at 725, and "[e]ven if [a] treating doctor's opinion is contradicted by another doctor, the ALJ may not reject this opinion without providing 'specific and legitimate reasons' supported by substantial evidence in the record." Reddick, 157 F.3d at 725; Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008).

The ALJ rejected Dr. Mohamadi's opinions that plaintiff's "physical function is limited to 2-3 [hours] of work per day and no lifting over 20 [pounds]." A.R. 138. He did so on the grounds that:

(1) Dr. Mohamadi's "records do not support the limitations suggested" since they "consist of progress notes showing only occasional visits and conservative medical care" and (2) examining physician Dr. Michaelson found less severe limitations than Dr. Mohamadi posited.

A.R. 22. These are specific and legitimate reasons for rejecting Dr. Mohamadi's opinions, and these reasons are supported by substantial evidence in the record. See, e.g., Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 2003) (ALJ properly rejected treating physician's opinion that was contradicted by his own notes and was inconsistent with other physicians' examination of claimant); Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (ALJ properly rejected treating physician's opinion that claimant was totally disabled when the opinion was inconsistent with physician's examination findings); Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (ALJ properly rejected treating physician's opinion, which was inconsistent with other evidence in the record, including an examining physician's medical report). Thus, there is no merit to this claim.

B. Lupus and Obesity:

The plaintiff contends the ALJ did not properly consider her systemic lupus erythematosus and obesity in finding she is not disabled. However, this is not correct. First, the ALJ found plaintiff's systemic lupus erythematosus is a severe impairment, A.R. 24, and did consider the medical evidence regarding this condition.*fn7 A.R. 21-24. Similarly, the ALJ found plaintiff's obesity is a severe impairment, A.R. 24, and did consider plaintiff's obesity in determining plaintiff could perform her past relevant work and is not disabled. In reaching this conclusion, the ALJ relied on the opinions of Dr. Michaelson, who weighed plaintiff and evaluated her obesity in setting limitations on plaintiff's activities.*fn8 See Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (examining physician's medical report based on independent examination of claimant is substantial evidence supporting ALJ's disability determination).

In Celaya, the Ninth Circuit held the ALJ committed legal error in failing to consider a claimant's obesity although the claimant did not specifically raise the issue. Celaya v. Halter, 332 F.3d 1177, 1181 (9th Cir. 2003). The appellate court's holding was based on three reasons:

First, it was raised implicitly in [the claimant's] report of symptoms. Second, it was clear from the record that [the claimant's] obesity was at least close to the listing criterion, and was a condition that could exacerbate her reported illnesses. Third, in light of [the claimant's] pro se status, the ALJ's observation of [the claimant] and the information on the record should have alerted him to the need to develop the record in respect to her obesity.

Celaya, 332 F.3d at 1182. Here, the circumstances in Celaya are not present. First, plaintiff was represented by counsel at the administrative hearing. Burch, 400 F.3d at 682. Second, the record contains absolutely no evidence that plaintiff's obesity exacerbates her other impairments. Id.; see also SSR 02-1p, 2000 WL 628049 at *4 ("There is no specific level of weight or BMI that equates with a 'severe' or a 'not severe' impairment. Neither do descriptive terms for levels of obesity (e.g., 'severe,' 'extreme,' or 'morbid' obesity) establish whether obesity is or is not a 'severe' impairment for disability program purposes."). Third, as discussed above, the ALJ found obesity was a severe condition and considered it in determining plaintiff's Step Four RFC assessment and determining plaintiff is not disabled. Thus, there is no merit to this claim.

C. Credibility:

The plaintiff testified at the administrative hearing that she is constantly "in a lot of pain" and tired, and her hands and joints often swell up. A.R. 171-72, 174-75. She stated that after she was diagnosed with lupus, she tried to work as a data collector, but she was too tired and in too much pain. A.R. 173. The plaintiff also averred that she lies down four or five hours a day for about half-an-hour to an hour each time, A.R. 174; she cannot stand for more than 30 minutes; she can barely lift 20 pounds; and she had difficulty sitting when she used to work a five-hour day. A.R. 170-71, 177.

Once a claimant has presented objective evidence she suffers from an impairment that could cause pain or other non-exertional limitations,*fn9 the ALJ may not discredit the claimant's testimony "solely because the degree of pain alleged by the claimant is not supported by objective medical evidence." Bunnell v. Sullivan, 947 F.2d 341, 347 (9th Cir. 1991) (en banc); Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004). Thus, if the ALJ finds the claimant's subjective complaints are not credible, she "'must provide specific, cogent reasons for the disbelief.'" Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006) (citations omitted); Orn v. Astrue, 495 F.3d 625, 635 (9th Cir. 2007). Furthermore, if there is medical evidence establishing an objective basis for some degree of pain and related symptoms, and no evidence affirmatively suggesting the claimant is malingering, the ALJ's reasons for rejecting the claimant's testimony must be "clear and convincing." Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1160 (9th Cir. 2008).

Here, the ALJ found plaintiff was not "totally credible" because she "take[s] care of her 3 children, pay[s] her own bills, drive[s] a car, perform[s] household chores, and perform[s] her own self-care skills without difficulty." A.R. 23. These reasons are supported by substantial evidence in the record, A.R. 52-56, 66-70, 107, 171, which clearly shows plaintiff's daily activities are "inconsistent with the presence of a condition which would preclude all work activity." Curry v. Sullivan, 925 F.2d 1127, 1130 (9th Cir. 1990); see also Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175 (9th Cir. 2008) (ALJ properly rejected claimant's testimony because she "has normal activities of daily living, including cooking, house cleaning, doing laundry, and helping her husband in managing finances."); Burch, 400 F.3d at 680 ("[T]he ALJ articulated adequate reasons for partially rejecting [the claimant's] pain testimony[,]" including claimant's ability "to care for her own personal needs, cook, clean and shop[,]" which show "she is quite functional."); Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (claimant's daily activities, including cooking, laundry, washing dishes, and shopping, supported negative credibility finding); Rollins, 261 F.3d at 857 (claimant's daily activities, such as attending to her two young children, cooking, housekeeping, laundry, shopping, attending therapy and various other meetings every week, were inconsistent with complaints of disabling pain).

The ALJ also relied on plaintiff's poor work history to support her adverse credibility determination, noting plaintiff "was also not very credible regarding the reasons why she felt she could not work[,]" i.e., "a lack of skills and having to take care of her children." A.R. 21, 23. Indeed, when the ALJ queried plaintiff about why she had never worked full-time before her illness, plaintiff responded "[e]ducation, my kids, skills." A.R. 172. This finding also is supported by substantial evidence in the record, and further supports the ALJ's adverse credibility determination. See, e.g., Thomas, 278 F.3d at 959 (ALJ's finding that claimant had an "extremely poor work history" and showed "little propensity to work in her lifetime" supported adverse credibility determination); Pearsall v. Massanari, 274 F.3d 1211, 1218 (8th Cir. 2001) ("A lack of work history may indicate a lack of motivation rather than a lack of ability."); Schaal v. Apfel, 134 F.3d 496, 502-03 (2d Cir. 1998) (ALJ may properly consider claimant's poor work history in concluding she is not credible witness); 20 C.F.R. § 416.929(c)(3) (in assessing symptoms such as pain, fact-finder "will consider all of the evidence presented, including information about [the claimant's] prior work record. . . .").

Finally, the ALJ found plaintiff "has received only occasional routine medical care. . . ." A.R. 23. This finding also is supported by substantial evidence in the record, which shows, for example, that plaintiff saw Dr. Katz, her rheumatologist, only three times between 2002 and 2005 and Dr. Katz prescribed only routine, non-steroid medication for plaintiff's systemic lupus erythematosus. A.R. 114, 156-57. Thus, this finding also supports the ALJ's negative credibility determination. Parra, 481 F.3d at 751; Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999). For all these reasons, "[t]he ALJ's reasons for [her] credibility determination were clear and convincing, sufficiently specific, and supported by substantial evidence[,]" Celaya, 332 F.3d at 1181; Burch, 400 F.3d at 681, and plaintiff's claim has no merit.


IT IS ORDERED that: (1) plaintiff's request for relief is denied; and (2) the Commissioner's decision is affirmed, and Judgment shall be entered in favor of defendant.

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