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United States District Court

For the Northern District of California

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

GLORIA WAGNER,

Plaintiff,

 v.

MICHAEL J. ASTRUE, Commissioner of

Social Security,

Defendant. /

No. C 09-0008 CRB

ORDER GRANTING DEFENDANT’S

MOTION FOR SUMMARY

JUDGMENT AND DENYING

PLAINTIFF’S MOTION FOR

SUMMARY JUDGMENT

Plaintiff Gloria Wagner seeks this Court’s review of the Social Security

Commissioner’s decision denying her disability benefits. The Administrative Law Judge

(“ALJ”) concluded that Plaintiff did not suffer any severe impairments and therefore was not

entitled to benefits. Plaintiff now moves for summary judgment, arguing that the ALJ’s

conclusion was not supported by substantial evidence and that the ALJ failed to take into

account her subjective reports of pain. Defendant has also moved for summary judgment,

arguing that the ALJ’s decision was adequately supported by the evidence and was free of

legal error. 

For the reasons explained below, this Court concludes that the ALJ’s decision should

stand. Therefore, Defendant’s motion for summary judgment is granted and Plaintiff’s is

denied.

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1. Procedural History

On July 29, 2005, Wagner filed a Title II application for a period of disability and

disability benefits, alleging that her disability began on September 30, 2003. A hearing

began on August 16, 2007, and was continued to February 29, 2008. A number of witnesses

testified, including Plaintiff, a board certified internist, and two vocational experts. 

At the hearing, Plaintiff amended her application for benefits to allege an onset date of

July 29, 2005. It also became clear at the hearing that as of the third quarter of 2007, and

continuing for more than six months, Plaintiff was engaged in substantial gainful activity. 

She worked as a shuttle bus driver for Chevron, earning a total of $17,139.00. Because such

employment prevents Plaintiff from receiving benefits for that time period, the ALJ limited

her eligibility for benefits to the period between July 29, 2005, and August of 2007. Plaintiff

does not dispute this limitation.

The ALJ issued an order on May 12, 2008, concluding that Plaintiff failed to establish

her entitlement to benefits. AR 96-103. First, the ALJ explained that Plaintiff’s complaints

referred in primary part to “neck and back pain which are unsupported by underlying

findings.” Id. at 99. The ALJ did note that one examination “indicated possible

radiculopathy,” but he concluded that this examination was insufficient on its own to

establish a medical basis for Plaintiff’s complaints. Id. at 100. This was so, in part, because

the examination “recommended clinical co-relation by a MRI[,] however none of her treating

or attending physicians found this necessary to perform.” Id.

Given the lack of extensive medical documentation of Plaintiff’s condition, the ALJ

then turned to her subjective reports of pain. First, he concluded that “the nature, onset and

duration of [Plaintiff’s] alleged complaints associated with pain and weakness in her upper

extremities, her left arm going ‘dead’, pain in her left side, dizziness, headaches and a

general inability to function [are] overall vague and non-specific.” Id. at 101. The ALJ

further concluded that, given that the only piece of medical evidence supporting some of

these complaints was itself inconclusive, “there is really no evidence of an underlying

impairment likely to cause the symptoms alleged.” Id. Instead of corroborating her

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subjective complaints, the ALJ concluded that the medical record “appears to be a searching

by her various physicians as to what is causing her multiple complaints with no clear clinical

or physical correlation to date.” Id. 

Next, the ALJ pointed to the fact that Plaintiff was able to maintain substantial gainful

employment as of August 2007 despite her allegations of ongoing pain. Id. The ALJ

concluded that while “the claimant’s medically determinable impairments could . . . produce

some of her alleged symptoms; . . . the claimant’s statements concerning the intensity,

persistence and limiting effects of these symptoms are not credible to the extent they are

inconsistent with finding that the claimant has no severe impairment or combination of

impairments as discussed herein.” Id. 

Finally, the ALJ looked to other medical evidence to corroborate his conclusion. Dr.

Jaskaran Momi conducted what the ALJ considered to be “the most complete physical

examination in the record,” id. at 102, and concluded that the claimant’s subjective

complaints “simply were not supported by the underlying physical findings,” id. Similarly,

Dr. Marinos concluded that while Plaintiff” was mildly to moderately depressed” after being

released from prison, “this would improve over the next few months.” Id. Because there

was no evidence in the record that Plaintiff subsequently sought any treatment for psychiatric

concerns, the ALJ concluded that there were no grounds to find a serious disability in

relation to any such concerns. 

2. Standard of Review

This Court will reverse an ALJ’s decision to deny social security benefits only if the

decision is based on legal error or unsupported by substantial evidence. Magallanes v.

Bowen, 881 F.2d 747, 750 (9th Cir. 1989). The “substantial evidence” standard requires less

than a preponderance but more than a scintilla; it demands “such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.” Id. The Court must

review the record as a whole, “weighing both the evidence that supports and that which

detracts from the ALJ’s conclusion.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.

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1995). Where the record is susceptible to more than one interpretation, this Court must

uphold the ALJ’s interpretation of it. Id.

3. Discussion

The ALJ concluded that Plaintiff’s ailments were not severe, and hence did not

qualify her for benefits. An impairment is “severe” if it significantly limits a claimant’s

ability to perform basic work activities for at least a consecutive twelve month period. See

20 C.F.R. § 416.920(a)(4)(ii); 61 Fed. Reg. 34,468, 34,469 (1996). An impairment “is

considered ‘not severe’ if it is a slight abnormality[] that causes no more than minimal

limitation in the individual’s ability to function independently, appropriately, and effectively

in an age-appropriate manner.” 61 Fed. Reg. at 34,469.

Plaintiff contends that “[t]he medical records from treating sources demonstrates [sic]

that Wagner suffers from a severe physical impairment.” In support, Plaintiff points to “Dr

Carmichael’s notations of neck and right arm pain” and to “[a]n EMG [that] was consistent

with chronic right c5 radiculopathy.” Plaintiff’s Brief at 5. Plaintiff goes on to suggest that

Dr. Carmichael’s opinion, as she was the treating physician, is entitled to significant

deference. See, e.g., Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987). However, as the

Commissioner points out, it is important to look specifically at Dr. Carmichael’s reports. 

First, many of the citations provided by Plaintiff are to Dr. Carmichael’s record of

Plaintiff’s assertions that she was in pain. These notes are by no means medical diagnoses,

but rather simply report the fact that Plaintiff made complaints. As explained by a regulation

cited by Plaintiff herself, “symptoms, such as pain . . . , will not be found to affect an

individual’s ability to do basic work activities unless the individual first establishes by

objective medical evidence . . . that he or she has a medically determinable physical or

mental impairment.” 61 Fed. Reg. at 34,469. The only medical diagnosis hinted at in Dr.

Carmichael’s reports is “an EMG that showed a right cervical radiculopathy.” AR at 505. 

However, the records in the AR never go so far as to make a diagnosis, nor does Carmichael

apparently conclude that the EMG on its own is sufficient evidence of a severe medical

impairment. In one record she appears to doubt such a finding because “the flat plate of the

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 While the ALJ did not rely on this fact, it bears noting that Dr. Carmichael apparently

believed Plaintiff to be exaggerating her symptoms. See, e.g., AR 523, 525; see also Thomas v.

Barnhart, 278 F.3d 948, 959 (9th Cir. 2002) (noting that claimant’s “efforts to impede accurate testing

of her limitations” showed that she was not credible). 

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C-spine regular x-ray showed mild spondylosis only.” Id. In other records Dr. Carmichael

indicates that a reliable diagnosis could not be made in the absence of an MRI, which

Plaintiff declined to have. Id. The EMG results themselves suggested corroborating the test

with an MRE. Id. at 518. Moreover, it appears elsewhere that Dr. Carmichael believed the

EMG results could have some other explanation. See id. at 516. As the ALJ noted, the

records reflect that Dr. Carmichael was attempting to explain Plaintiff’s reported symptoms,

but was ultimately unable to establish a medical explanation.1

Given that Dr. Carmichael’s records did not reflect a medical explanation for

Plaintiff’s complaints, Plaintiff also places some emphasis on a questionnaire submitted by

Dr. Carmichael after the first day of Plaintiff’s hearing before the ALJ. Plaintiff argues that

this questionnaire shows that Dr. Carmichael believed “Wagner was significantly limited as a

result of [her] impairments.” Plaintiff’s Brief at 5. Indeed, that questionnaire does reflect

that Dr. Carmichael believed Plaintiff suffered some moderate limitations. However, this

questionnaire does nothing more than establish that Dr. Carmichael believed Plaintiff’s

complaints; it does not establish a medical basis for those complaints. As noted above,

unless the individual can “establish[] by objective medical evidence . . . that he or she has a

medically determinable physical or mental impairment[] and that the impairment[] could

reasonably be expected to produce the alleged symptom,” those symptoms on their own

cannot establish a severe impairment. 61 Fed. Reg. at 34,469. Indeed, the ALJ left the

record open for thirty days after the hearing in order for Dr. Carmichael to submit just that

sort of evidence: something tying Plaintiff’s complaints to a medical condition. See AR at 33

(the ALJ requesting that Dr. Carmichael “write a letter and . . . say what she thinks is wrong

with [Plaintiff], . . . and if you could work or not and what your limitations are). Finally,

because Dr. Carmichael’s checklist was not a narrative and provided only minimal context

for the doctor’s conclusion, it was permissible to afford that checklist relatively little

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evidentiary weigh. See Batson v. Comm’r of Social Security Admin., 359 F.3d 1190, 1195

(9th Cir. 2004); Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996). Therefore, even though

the opinion of a treating physician is afforded special weight, the ALJ cited persuasive

reasons for disagreeing with her conclusions. See Batson, 359 F.3d at 1195 (noting that “the

ALJ may disregard the treating physician’s opinion whether or not that opinion is

contradicted”). Further corroborating the ALJ’s decision is the fact that other medical

evidence supports the conclusion that Plaintiff’s complaints do not have an identified

medical basis. Dr. Jaskaran Momi examined the plaintiff and did not identify any objective

medical condition that could be expected to lead to those complaints. 

As to Plaintiff’s arguments regarding a potential psychiatric impairment, the medical

record is even weaker. Plaintiff points to Dr. Janine Marinos’s opinion, claiming that her

findings support a conclusion that Plaintiff suffers a serious disability. However, Dr.

Marinos concluded that while Plaintiff “would likely have mild-moderate difficulty at this

time maintaining concentration, interacting with others, and coping with stresses in a routine

work setting,” she went on to conclude that she “expect[s] her mental state to improve over

the coming months.” AR 378. Dr Marinos also seemed to suggest that Plaintiff’s difficulties

were related to her recent release from prison. Perhaps most importantly, the ALJ noted that

Plaintiff’s performance as a shuttle-bus driver without any apparent difficulty in

“maintaining concentration, interacting with others, [or] coping with stresses” constitutes

substantial evidence that Plaintiff’s psychiatric condition did not constitute a severe

disability. Moreover, Plaintiff’s testimony at the hearing did not reflect any psychiatric

difficulties relating to her performance as a bus driver.

Next, Plaintiff objects to the fact that the ALJ did not find her reports of her symptoms

to be credible. She argues that because she presented evidence “which wholly associates her

subjective symptoms with a clinically demonstrated impairment, credible subjective

testimony should contribute to a determination of disability.” Plaintiff’s Brief at 8. Plaintiff

overstates her evidence. The evidence simply does not establish that her symptoms are

“wholly associate[d]” with a “clinically demonstrated impairment.” As noted above, the

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“medical evidence” cited by Plaintiff is largely a doctor’s record of what Plaintiff claimed

her symptoms to be. 

The closest Plaintiff gets to a “clinically demonstrated impairment” is the EMG test

noted above. However, as observed even by Dr. Carmichael, that inconclusive test did not

explain the full panoply of symptoms reported by Plaintiff. Those symptoms therefore

qualify as “excess pain” testimony. Under Varney v. Secretary of Health & Human Services,

846 F.2d 581 (9th Cir. 1988) (superseded by statute on other grounds), “the Secretary may

decide to disbelieve or disregard excess pain testimony” if the finding is “supported by

specific findings.” Id. at 584. The ALJ in this case provided specific findings. Most

importantly, the ALJ concluded that Plaintiff’s ability to maintain gainful employment

reveals that her testimony regarding her limitations is not credible. Moreover, the ALJ found

her reports of pain to be less credible because they were vague and non-specific. Finally, in

line with factors enumerated in Social Security Ruling 96-7p, the ALJ considered Plaintiff’s

daily activities, factors that precipitate and aggravate the symptoms, and the steps taken by

Plaintiff to alleviate the symptoms. Given that Plaintiff performed regular chores at home,

that there was “no evidence of precipitation or aggravation of her symptoms,” that she never

had any surgery or inpatient treatment to address these symptoms, the ALJ concluded that

her excess pain testimony was not credible. Under case law and the relevant regulations, this

amounts to substantial evidence and justifies the ALJ’s conclusion. See, e.g., Tommasetti v.

Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (concluding that vague testimony can support an

adverse credibility finding); Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (“[E]vidence

of ‘conservative treatment’ is sufficient to discount a claimant’s testimony regarding severity

of an impairment.”)

4. Conclusion

For the reasons explained above, the Government’s motion for summary judgment is

GRANTED, and Plaintiff’s is DENIED. The ALJ thoroughly analyzed the medical record

and fairly considered all the testimony provided at the hearing. While Plaintiff is correct that

the ALJ’s adverse credibility finding must be supported by specific findings, the ALJ more

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G:\CRBALL\2009\08\ORDER GRANTING SUMMARY JUDGMENT.wpd8

than satisfied this standard. Given the inconclusive nature of the medical evidence, and

Plaintiff’s lack of credibility in her testimony regarding her symptoms, substantial evidence

supports the ALJ’s conclusion that Plaintiff did not suffer a severe disability.

IT IS SO ORDERED.

Dated: March 1, 2010 

CHARLES R. BREYER

UNITED STATES DISTRICT JUDGE

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