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United States District Court, N.D. CaliforniaDec 14, 2000
Case No. C 99-4930 JL (N.D. Cal. Dec. 14, 2000)

Case No. C 99-4930 JL

December 14, 2000



Both parties in this case consented to the jurisdiction of the magistrate judge, pursuant to 28 U.S.C. § 636(c).The parties filed cross-motions for summary judgment. The matter was submitted without oral argument.


Plaintiff complains of a decision which affects Plaintiff. This is a final decision by the Commissioner and Plaintiff has exhausted his administrative remedies. This court has jurisdiction for judicial review pursuant to 42 U.S.C. § 405(g). Plaintiff seeks a reversal of the decision and an order that benefits be paid.


Plaintiff filed a claim for disability insurance benefits under Title II of the Social Security Act on January 4, 1996. He alleged that he became disabled as of December 1, 1995. A Social Security employee took Plaintiff's testimony by telephone interview. Plaintiff testified that he had worked as a truck driver, but suffered from severe back and leg pain, bipolar disorder and memory problems. Plaintiffs' application was denied on March 15, 1996. Plaintiff requested reconsideration on May 13, 1996 and was again denied benefits on August 16, 1996. On September 10, 1996, Plaintiff requested an administrative hearing.

A hearing was held on December 4, 1997, before Administrative Law Judge ("ALJ") Antonio Acevedo-Torres. The ALJ concluded that Plaintiff suffered from multiple severe impairments, which include chronic low back pain secondary to degenerative disc disease and residual status post multiple back surgeries. The medical records also show evidence of a bipolar disorder and a substance abuse disorder in remission. The ALJ also found evidence of occasional neck strain and a past history of knee pain. (Notice at 11, ¶ 3 ). The ALJ found Plaintiff not disabled, specifically able to perform unskilled sedentary work. The ALJ found further evidence that Plaintiff was not disabled because his psychological symptoms were significantly alleviated after he began medication and these medications were only discontinued because of side effects including a nervous stomach and problems with attention. (ALJ Notice of Decision, hereinafter "Notice") 11, 1.

Plaintiff stopped using drugs 15 years prior to his application and stopped drinking at about the same time he lost his driver's license following a DUI. (Decision at 3, ¶ 3, 10, ¶ 1)

The ALJ then referred Plaintiff to the guidelines of Social Security Rule 83-10. The guidelines list 200 separate unskilled sedentary occupations in the national economy that the ALJ concluded Plaintiff could perform. On May 15, 1998, Plaintiff asked the Appeals Council to review the ALJ's decision. On September 16, 1999, the Appeals Council denied the request for review and affirmed the ALJ's decision. Plaintiff now brings this action for judicial review.

LEGAL ARGUMENT Plaintiff's Argument

Plaintiff contends that the ALJ committed four errors that require this Court to grant Plaintiff's motion for summary judgement, reverse the Commissioner's decision, and order that Plaintiff be granted benefits for a continuing period of disability beginning on December 1, 1995, his alleged onset date. The Commissioner of Social Security ("Commissioner") moves for summary judgment that there is no material issue of fact in dispute, that Plaintiff is not disabled and that the ALJ correctly denied benefits.

First, Plaintiff contends the ALJ committed an error of law and abused his discretion by substituting his own medical opinion for those of the treating and examining psychiatrists. Plaintiff asserts that treating psychiatrists' opinions are entitled to "controlling weight" or "deference" according to 20 C.F.R. § 404.1527(d)(2). Plaintiff's treating psychiatrist considered Plaintiff totally disabled, the ALJ therefore erred when he rejected the conclusion of Plaintiff's treating psychiatrist in favor of the opinion of the examining psychiatrist chosen by Social Security. Plaintiff also contends that the Social Security psychiatrist did not discuss the Social Security mental listings, did not state any opinion about Plaintiff's mental residual functional capacity, and did not contradict the opinions of the treating psychiatrist.

Second, Plaintiff contends that the ALJ committed an additional error of law and abused his discretion by substituting his own medical opinions for those of the treating orthopedic specialists and did not give substantial weight to their opinions. Plaintiff asserts that treating specialists' opinions are entitled to "controlling weight" or at least "deference" according to 20 C.F.R. § 404.1527(d)(2) and specialists' opinions are entitled to substantial weight according to 20 C.F.R. § 404.1527(d)(5). Therefore, the ALJ erred in rejecting Plaintiff's treating orthopedic surgeon's conclusion that Plaintiff had an extremely severe work limitation, including the inability to maintain the pace and persistence of competitive work for eight hours a day. Instead, Plaintiff contends the ALJ improperly accepted the unfavorable findings of a doctor who was not an orthopedist who did not review the lumbar spine X-ray and MRI reports which later became available.

Third, Plaintiff contends the ALJ used an incorrect legal standard when he concluded Plaintiff was "not fully credible." Plaintiff asserts that his subjective complaints are deemed to be accepted as true if the ALJ fails to articulate adequate reasons, based on substantial evidence, to discredit the testimony. Varney v. Secretary of Health and Human Services, 859 F.2d 1396 (9th Cir. 1988). Plaintiff relies on a case which holds that "when the decision of an ALJ rests on negative credibility evaluation, the ALJ must make findings on the record and must support those findings by pointing to substantial evidence on the record." Ceguerra v. Secretary of Health and Human Services, 933 F.2d 735, 738 (9th Cir. 1991). Plaintiff argues that in his case the ALJ failed to specify sound and legitimate reasons why he found Plaintiff not credible.

Last, Plaintiff contends that the ALJ erred in the fifth step of the sequential evaluation of Plaintiff's disability by not calling in a vocational expert. The role of this expert would have been to assess the effect of Plaintiff's impairments on his ability to perform specific jobs. Plaintiff relies on the principle that when an ALJ finds that a plaintiff's impairment does not meet or equal a listed impairment but that he nevertheless cannot perform his past relevant work, the burden shifts to the Commissioner to establish that the plaintiff retains the residual functional capacity to do other work. Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984). Plaintiff contends that under the cases cited above, the ALJ is required to call a vocational expert to testify to assess the effect of Plaintiff's impairments on his ability to perform specific jobs.

Defendant's Argument

Defendant contends that all of the ALJ's actions were proper and that therefore Defendant's cross-motion for summary judgment should be granted and Plaintiff's motion should be denied.

First, Defendant contends that the ALJ properly assessed the medical evidence and Plaintiff's functional capacity. The ALJ found Plaintiff able to sit and use his hands without limitation and to stand for up to four hours. He based this conclusion on the evaluation of Plaintiff by the examining physician designated by Social Security. Defendant asserts that the ALJ properly found Plaintiff was able to perform unskilled work despite his psychiatric symptoms. The ALJ's decision was based on the evidence that Plaintiff's symptoms were present during the period he worked as a truck driver. Also, the Social Security examining physician concluded that Plaintiff's mental status exam was normal and that he answered questions appropriately. In addition, the ALJ properly rejected the contrary medical assessments of Plaintiff's mental capacity because an ALJ is entitled to resolve conflicts between doctors' reports. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995).

Second, Defendant claims the ALJ properly evaluated Plaintiff's subjective reports and provided clear and convincing reasons for finding that Plaintiff was not fully credible. The ALJ noted that Plaintiff's psychological symptoms were significantly alleviated after he began medication and that even after the medication was discontinued because of an alleged side effect, while he was being treated by Dr. Slater, Plaintiff's condition improved when he returned to treatment with Dr. Kaye. Further, the Defendant contends that the record indicates Plaintiff was able to manage his back condition with anti-inflammatory medication and an epidural injection.

Finally, Defendant supports the ALJ's reliance on the "framework of the Medical Vocational rules ("Grid") where the applicable rules accommodate the claimant's exertional (strength) and non-exertional limitations." 20 C.F.R. § 404.1569a(d)(1999). Blacknall v. Heckler, 721 F.2d 1179, 1181 (9th Cir. 1983). The framework of rules 201.27/201.28 account for Plaintiff's physical restriction to sedentary work, and his mental limitation to unskilled work. Thus, the ALJ was not required to call a vocational expert because the sedentary rule reflected a significant number of unskilled jobs that an individual with Plaintiff's vocational background and functional capacity could perform. Rule 201.11, Appendix 2, Subpart P, Regulations No. 4.

Exertional categories are sedentary, light, moderate and heavy. The ALJ found Plaintiff capable of only sedentary work (Decision at p. 20:, nos. 5 and 11). The nonexertional requirements include Plaintiff's education and his past work experience.


Summary judgment is appropriate when there are no genuine issues of fact to be tried. In order to defeat summary judgment, the nonmoving party must present some evidence showing there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The Social Security Act provides for payment of disability insurance benefits to people who have contributed to the Social Security system and who suffer from physical or mental disabilities. The Act defines "disability" as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment" that will result in death or that has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 423(d)(1)(A). A claimant is disabled only if his physical or mental impairment is 50 severe "that he is not only unable to do his previous work 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 area where he lives, or whether he would be hired if he applied for work. 42 U.S.C. § 423(d)(2)(A). A physical or mental impairment is "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d)(3).

The initial evaluation of a claim for disability benefits is made by a state agency acting under the authority and supervision of the Commissioner. If the state agency denies the claim, the claimant may 1) request de novo reconsideration by the state agency; 2) request a hearing before a Social Security Administration ALJ; 3) seek review by the Appeals Council; and 4) seek review in federal district court. Bowen v. Yuckert, 482 U.S. 137, 142 (1987).

The regulations provide for a five-step sequential analysis to determine whether a Social Security claimant is disabled. Id. at 140-42; 20 C.F.R. § 404.1520. The answer at any stage of the analysis may be conclusive as to the lack of disability, in which case the inquiry terminates at that point. Id. The final step in the analysis is to assess the claimant's residual functional capacity, with the burden being upon the Commissioner to show that the claimant can still perform work available in the national economy. Smolen v. Chater, 80 F.3d 1273, 1291 (9th Cir. 1996; 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1520.

In steps one through four, a claimant has the burden to demonstrate a severe impairment and an inability to perform past work; if the sequential evaluation process proceeds to step five, the burden shifts to the Commissioner. Bowen, Id. at 146 n. 5; Andrews v. Shalala, 53 F.3d 1035, 1040 (9th Cir. 1995). The Commissioner must then show that, despite the claimant's impairments, he can still perform other jobs that exist in significant number in the national economy. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990). The findings of the administrative law judge are conclusive as to any fact, if supported by substantial evidence. Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985).

1. Mental and Physical Impairments

To succeed in a claim for Social Security disability benefits, a claimant must demonstrate a severe impairment and an inability to perform the same work as he has done in the past. 20 C.F.R. § 404.1520. All of the claimant's self-reported symptoms, including pain, and the extent to which those symptoms "can reasonably be accepted as consistent with the objective medical evidence and other evidence," must be considered. 20 C.F.R. § 404.1529. "Objective medical evidence" means "medical signs [verified by medically acceptable clinical diagnostic techniques] and laboratory findings [verified by medically acceptable laboratory diagnostic techniques]." Id. "Other evidence" includes 1) statements or reports from the claimant, 2) reports of treating or examining physicians regarding the claimant's medical history, diagnosis, prescribed treatment, daily activities, efforts to work, and any other evidence showing how the claimant's impairment(s) and 3) any related symptoms affect his or her ability to work. Id. The opinion of the claimant's treating physician may be contradicted by a nontreating physician, 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 solely the province of the ALJ to resolve the conflict. Andrews, 53 F.3d at 1041. However, "where an ALJ chooses to disregard the opinion of a treating physician, he must set forth clear and convincing reasons for doing so if the treating physician's opinion is not contradicted by another doctor." Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991) The legal test for rejecting the opinion of the treating physician is "specific and legitimate reasons" supported by substantial evidence. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995).

In the case at bar, Plaintiff was evaluated by four physicians, one treating and three examining, for psychological impairments. The treating physician was Dr. Kaye. The three examining physicians were Dr. Hashem, Dr. Burton and Dr. Jestrow. In addition, Plaintiff was evaluated by four physicians, two treating and two examining, for orthopedic impairments. The two treating physicians were Dr. McCarthy and Dr. Burt. The two examining physicians were Dr. Cunningham and Dr. Weiss.

The four physicians who examined Plaintiff for mental impairments had varying opinions as to their extent. While Plaintiff's treating physician, Dr. Kaye, and the examining physician, Dr. Jestrow, diagnosed Plaintiff with bipolar disorder, meeting the requirement of medical Listing 12.04, only Dr. Kaye concluded that Plaintiff was totally disabled. The three other examining physicians (Drs. Weiss, Hashem and Baron) found Plaintiff did not have bipolar disorder but may have adult attention deficit hyperactivity disorder (ADHD). Given the conflict between the treating and examining physicians, the ALJ acted properly in resolving conflicting opinions.

If the ALJ is to reject the opinion of the treating physician, he must provide "specific and legitimate reasons." In the case at bar, the ALJ provided specific and legitimate reasons for rejecting the treating physician's opinions, asserting that "multiple physicians have opined that the claimant's mental impairments and/or his lumbar spine impairment are at "listing" levels.. .are not supported by either their own objective findings or the remaining medical evidence and other evidence of record." Notice 12, ¶ 2. With respect to Dr. Kaye, in particular, the ALJ found that his assessment of Plaintiff for this application is inconsistent with his own treatment notes. Dr. Kaye completed a medical assessment of Plaintiff's ability to perform work-related activities and concluded that Plaintiff was unable to work, due to Attention Deficit Disorder and Bipolar Disorder. His treatment notes, however, show that, after treatment with medication, Plaintiff's symptoms markedly improved. (Notice at 9, ¶ 3 and 4). Further, the ALJ pointed to the fact that despite Plaintiffs's bipolar disorder and ADHD, there was no evidence that Plaintiff terminated his prior employment as a truck driver based on these impairments. Notice at 16, 17, ¶ 5. More likely, he stopped driving a truck because he lost his driver's license secondary to a DUI (Notice at 17, ¶ 1). Thus, the ALJ acted properly in concluding Plaintiff's mental impairments were not a disability as defined in the Act.

The orthopedic physicians also expressed conflicting opinions. One of Plaintiff's treating physicians, Dr. Andrew Burt, concluded that Plaintiff was unable to compete in the open labor market. However, the ALJ noted that Dr. Burt gave great weight to Plaintiff's subjective complaints, which the ALJ found not to be credible. The ALJ observed that there were no objective clinical findings to support the limitations alleged (Notice at 15, ¶ 3, 4 and 5). The ALJ disagreed on this basis with the conclusion that Plaintiff's back pain was at listing level, although he acknowledged that there were some objective findings on x-ray (Notice at 15, ¶ 6). Plaintiff's other treating physician, Dr. Gary McCarthy, found Plaintiff was able to sit, stand, and walk for only 30 minutes at a time and must lie down for up to two hours during the work day. The three examining orthopedic physicians found that, although Plaintiff did have varying degrees of neck, back, and knee pain that created certain limitations, his impairments were not severe enough to cause a disability. Since Plaintiff's treating physician's opinion is contradicted by the examining physician and the opinion of nontreating physicians may themselves be substantial evidence, the ALJ acted properly in resolving the conflict. Andrews, 53 F.3d at 1041 .The ALJ properly looked to the examining physicians' opinions, and the fact that Plaintiff rarely sought medical treatment during the time he alleges he experienced severe pain, as well as his own testimony that he is able to do daily activities such as housework, cooking and cleaning, to conclude that his limitation did not meet listing levels.

2. Credibility Determination

The ALJ is responsible for determining the credibility of witnesses and claimants. Andrews, 53 F.3d at 1043. The ALJ's findings, however, "must be supported by specific, cogent reasons." Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). Mere general findings are not sufficient; "the ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints." Lester v. C hater, 81 F.3d 821, 834 (9th Cir. 1996). In regard to an individual's description of his own pain and other symptoms, these statements "shall not alone be conclusive evidence of disability." 42 U.S.C. § 423(d)(5)(A). Nor is an ALJ required to believe every allegation of disabling pain. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). The ALJ may consider such factors as inconsistencies in the claimant's testimony, the extent of the claimant's daily activities, any inadequately explained failure to seek treatment or to follow a prescribed course of treatment, or other methods of credibility determination. Bunnell v. Sullivan, 947 F.2d at 346. In addition, the ALJ must consider the factors set out in SSR 88-13 and SSR 9621 to evaluate the credibility of testimony about subjective symptoms. Smolen v. Chater, 80 F.3d at 1284; Bunnell, 947 F.2d at 346. These factors include the claimant's work record, observations of treating or examining physicians and other third parties, precipitating and aggravating factors, and functional restrictions caused by the symptoms. SSR 88-13; SSR 96-7p.

In the case at bar, the ALJ cites several reasons for finding the Plaintiff's allegations not fully credible with respect to the severity of his impairments and functional limitations. First, the ALJ pointed to "the fact that the claimant has rarely sought treatment for his impairments lessens his credibility regarding his allegations of severe pain and/or other disabling symptoms. If the claimant was as limited as alleged, it appears that he would have sought treatment on a regular basis." Notice 12, ¶ 5, 13, ¶ 1. Second, the ALJ cited the "conflicting statements in the record regarding the onset of his alleged disabling musculoskeletal symptoms." Notice 13, ¶ 2. The ALJ found Plaintiff's complaints not credible as to "significant back pain with radiation into his lower extremities, as well as cervical neck pain and bilateral knee pain" since there were no recent x-rays that showed findings which would cause the symptoms or limitations alleged. Notice 15, ¶ 4. Thus, the ALJ provided specific and cogent reasons for finding the Plaintiff not fully credible. Reddick, 157 F.3d at 722.

3. Fifth step of the Sequential Evaluation

When a claimant such as plaintiff establishes that he cannot return to his previous occupation, the burden of proof shifts to the Commissioner to determine whether the claimant retains the capacity to pursue less demanding work. See § 404.1 520(f)(1).

The regulations divide this last inquiry into two stages. First, the Commissioner must assess each claimant's present job qualifications. The regulations direct the Commissioner to consider the factors Congress has identified as relevant: physical ability, age, education and work experience. 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1520(f); §§ 404.1566-404.1569.

Prior to 1978, the Commissioner relied on vocational experts to establish the existence of suitable jobs in the national economy. After a claimant's limitations and abilities had been determined at a hearing, the expert ordinarily would testify whether work existed that the claimant could perform. To improve both the uniformity and efficiency of this determination, the Secretary of Health and Human Services promulgated medical-vocational guidelines as part of the 1978 regulations. See 20 C.F.R. pt. 404, subpt. P, app.2 (1982). These guidelines relieve the Commissioner of the need to rely on vocational experts by establishing through rulemaking the types and numbers of jobs that exist in the national economy. They consist of a matrix of four factors identified by Congress — physical ability, age, education, and work experience — and set forth rules that identify whether jobs requiring specific combinations of these factors exist in significant numbers in the national economy. Where a claimant's qualifications correspond to the job requirements identified by a rule, the guidelines direct a conclusion as to whether work exists that the claimant could perform. If such work exists, the claimant is not considered disabled. Heckler v. Campbell, 461 U.S. 458, 462 (1983) (52 year old former hotel maid with hypertension, back condition and limited English was not disabled because she could perform light unskilled work and a significant number of jobs existed that a person of her qualifications could perform. Court overruled Court of Appeals ruling that ALJ should have heard testimony from vocational expert.)

In the case at bar, the ALJ determined that Plaintiff had proved that, due to his physical limitations, he was not able to perform his past relevant work as a truck driver. The burden then shifted to the Commissioner. The ALJ in the case at bar found that Plaintiff was 45 years old, experienced at unskilled work, with physical limitations which would permit him to work only at a sedentary job, and a high school education. The ALJ relied on the Social Security Ruling 83-10 guidelines which list approximately 200 separate unskilled, sedentary occupations, each representing numerous jobs in the national economy, which someone of Plaintiff's qualifications could perform. Defendant contends that the ALJ acted properly in not calling a vocational expert because he relied on the framework of the medical vocational rules. It is appropriate for an ALJ to use the guidelines to determine a claimant's right to disability benefits when he has made specific findings of the claimant's limitations and capabilities. In the case at bar, the ALJ found Plaintiff to be capable of sedentary unskilled work, based on his age, work experience, physical condition and education. He looked to the guidelines which offer numerous jobs which fit this description. The U.S. Supreme Court has held that where adequate evidence is presented of a claimant's limitations and capabilities, with an opportunity for the claimant to respond, that the ALJ is not required to hear testimony from a vocational rehabilitation expert. The purpose of the guidelines is to obviate the necessity for such testimony and relieve an overburdened agency. In Plaintiff's case, the ALJ had received abundant testimony as to his physical and mental limitations and capabilities, adequate to enable the ALJ to draw conclusions without the individualized testimony of a vocational expert. Use of the guidelines was lawful in Plaintiff's case. Heckler, 461 U.S. at 469-470 (the Secretary reasonably could choose to rely on guidelines in appropriate cases rather than on the testimony of a vocational expert in each case.)


To arrive at his conclusion, the ALJ looked to the treating and examining physicians' opinions, the objective findings, the fact that Plaintiff rarely sought medical treatment during the time he alleges he experienced severe pain, as well as his own testimony that he is able to do daily activities such as housework, cooking and cleaning. The ALJ also found that Plaintiff's psychological symptoms were relieved with medication, and were less likely the reason he stopped driving a truck than the fact that he lost his license as a result of a DUI.

The ALJ found Plaintiff's complaints not credible as to significant back pain with radiation into his lower extremities, as well as cervical neck pain and bilateral knee pain since the objective findings were not sufficient to cause the symptoms or limitations alleged. Furthermore, Plaintiff had not sought treatment for these problems on a regular basis, as would have been expected if they were as severe as he claimed. Thus, the ALJ provided specific and cogent reasons for finding the Plaintiff not fully credible.

The use of the Guidelines listing sedentary unskilled jobs which Plaintiff could perform, based on adequate evidence of Plaintiff's limitations and capabilities, is sufficient to meet the burden of proof to deny disability benefits to Plaintiff. Accordingly, for good cause appearing,

IT IS HEREBY ORDERED that Plaintiffs' Motion for Summary Judgment is denied, Defendant's Motion for Summary Judgment is granted. Judgment shall be entered for Defendant. The clerk shall close the file.