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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

ROY P. ALLEN,

Plaintiff,

v.

JO ANNE B. BARNHART, Commissioner of

Social Security Administration,

Defendant.

CASE NO. C05-5552RBL

REPORT AND

RECOMMENDATION

Noted for January 12, 2007

This matter has been referred to Magistrate Judge J. Kelley Arnold pursuant to 28 U.S.C. §

636(b)(1)(B) and Local Magistrates Rule MJR 4(a)(4) and as authorized by Mathews, secretary of H.E.W.

v. Weber, 423 U.S. 261 (1976). This matter has been briefed, and after reviewing the record, the

undersigned recommends that the Court affirm the administration’s final decision.

INTRODUCTION

Plaintiff, Roy P. Allen, was born in 1965, he dropped out of High School in the 11th grade and he

earned a GED in 1999. Plaintiff was previously married and he has one child. He has work experience as

a landscaper, and he last worked in 1985. Plaintiff alleges he has been unable to work since 1985 due to

back pain (Dr. 156).

Plaintiff filed a claim or application for Title XVII Social Security benefits in 2000, which was

ultimately denied when Plaintiff failed to appear for his hearing in 2001. Plaintiff filed a second application

for Title XVII Social Security disability benefits on January 28, 2002 (Tr. 82). His claim was initially

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denied on July 31, 2002 (Tr. 35), and he filed a Request for Reconsideration on September 10,. 2002 (Tr.

39). The administration denied the request, and Plaintiff filed a Request for Hearing by Administrative

Law Judge (“ALJ”) on December 21,2002 (Tr. 44). The hearing was held on February 3, 2004. The ALJ

issued his decision on October 19, 2004, denying the application. Plaintiff timely filed a request for Review

of Hearing Decision/Order with the Social Security Appeals Council, but on June 5, 2005, the Appeals

Council ruled against the Plaintiff. The ALJ's decision of October 19, 2004, therefore became the final

administrative decision. 

The ALJ applied the five-step sequential evaluation process for determining whether a

claimant is disabled. See 20 C.F.R. § 416.920. At step-one, the ALJ found that Plaintiff had not engaged

in substantial gainful activity (Tr. 16, 23 Finding 1). At step-two, the ALJ found that Plaintiff established

the following severe impairments: lumbosacral strain syndrome with degenerative joint disease at L5-S1; an

adjustment disorder; a chronic pain disorder; and a personality disorder (Tr. 17, 24 Finding 2). At step

three, the ALJ found that Plaintiff’s impairments, alone or in combination, did not satisfy the Listings (Tr.

18, 24 Finding 3). The ALJ further determined that Plaintiff retained the following residual functional

capacity (RFC): lift 20 pounds occasionally, 10 pounds frequently; sit/stand at will; only occasional

bending or squatting; and only occasional contact with the public (Tr. 22, 24 Finding 5). At step four, the

ALJ found that Plaintiff had no past relevant work (Tr. 22, 24 Finding 6). At step five, relying upon

vocational expert testimony, the ALJ found that a younger person, with Plaintiff’s RFC and vocational

profile, could perform a significant number of jobs in the national economy, represented by: small products

assembly (700,000 jobs nationally, 5,000 statewide); and cannery worker (500,000 jobs nationally, 5,500

jobs statewide)(Tr. 23). The ALJ thus found Plaintiff capable of performing a significant number of jobs in

the national economy and not disabled (Tr. 23, 24 Findings 10 and 11).

Plaintiff filed a Complaint with the Court challenging the denial of his applications for benefits on

August 19, 2006. Specifically, plaintiff contends: (1) the ALJ failed to apply the proper standard in

assessing the Plaintiff’s subjective pain symptoms; (2) the ALJ erred by according improper weight to

evidence and testimony from non-treating medical sources; and (3) the ALJ erred by improper questioning

of the vocational expert. Defendant counter-argues that the ALJ applied the proper legal standards and

that the administrative findings and conclusions were properly supported by substantial evidence.

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 DISCUSSION

This Court must uphold the determination that plaintiff is not disabled if the ALJ applied the proper

legal standard and there is substantial evidence in the record as a whole to support the decision. Hoffman

v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986). Substantial evidence is such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389,

401 (1971); Fife v. Heckler, 767 F.2d 1427, 1429 (9th Cir. 1985). It is more than a scintilla but less than a

preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975); Carr v. Sullivan, 772

F. Supp. 522, 525 (E.D. Wash. 1991). If the evidence admits of more than one rational interpretation, the

Court must uphold the Secretary's decision. Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984).

A. THE ALJ PROPERLY ASSESSED THE MEDICAL OPINIONS

The ALJ is entitled to resolve conflicts in the medical evidence. Sprague v. Bowen, 812 F.2d 1226,

1230 (9th Cir. 1987). He may not, however, substitute his own opinion for that of qualified medical

experts. Walden v. Schweiker, 672 F.2d 835, 839 (11th Cir. 1982). If a treating doctor’s opinion is

contradicted by another doctor, the Commissioner may not reject this opinion without providing “specific

and legitimate reasons” supported by substantial evidence in the record for doing so. Murray v. Heckler,

722 F.2d 499, 502 (9th Cir. 1983). “ The opinion of a nonexamining physician cannot by itself constitute

substantial evidence that justifies the rejection of the opinion of either an examining physician or a treating

physician.” Lester v. Chater, 81 F.3d 821, 831 (9th Cir. 1996). In Magallanes v. Bowen, 881 F.2d 747,

751-55 (9th Cir. 1989), the Ninth Circuit upheld the ALJ’s rejection of a treating physician’s opinion

because the ALJ relied not only on a nonexamining physician’s testimony, but in addition, the ALJ relied

on laboratory test results, contrary reports from examining physicians and on testimony from the claimant

that conflicted with the treating physician’s opinion. 

Here, plaintiff contends the ALJ improperly evaluated the opinion of Dr. Bell. Dr. Bell is Plaintiff’s

treating physician, and in 1995, Dr. Bell concluded opined:

Mr. Roy Allen is a patient under my care for chronic lumbosacral strain syndrome. 

He has had surgery without any significant benefit. He has developed a syndrome of

intractable low back pain aggravated by any significant lifting, twisting, or bending.

I do not think this patient is going to be able to return to work, and he is going to

have to live with his current level of comfort.

(Tr. 231). On October 24, 2002, Dr. Bell further noted:

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[Mr. Allen] is generally unemployable, unlikely to work full time. He stands 20 minutes to

walk, walks about 1⁄2 block and gets short of breath and severe back pain. He cannot do

anything greater than 20 minutes in terms of walking, lifting, twisting, and bending. He

cannot lift things up that are 10 or 15 pounds over his head.

(Tr. 298).

As noted above, the ALJ may reject the opinion of a treating physician if the ALJ provides,

“specific and legitimate reasons” supported by substantial evidence in the record. Here, the ALJ gave

specific and legitimate reasons to reject the treating opinions of Dr. Bell. The ALJ explained his reasoning

and decision as follows:

Based on the objective record, medical expert David R. Rullman, M.D., testified that all

neurological evaluations are normal, the record contains no evidence of spina bifida, and xrays are also normal, showing ordinary abnormalities that occur in most people after the age

of 20. While emphasized by the representative, the medical expert did not endorse the

diagnosis of failed back syndrome which, as previously discussed, was briefly cited by Dr.

Bell and Dr. Doorani. However, Dr. Rullman explained that chronic pain syndrome is a

recognized diagnosis.

A single evaluation supports the allegations of the claimant and describes him as unable to

function. In a consultative evaluation on June 20, 2002, by Anand Vaishnav, M.D., the

claimant reported arthritis for years with low back pain; neck pain; arthritis in the elbows,

wrists, and knee joints, arising in the past month; fibromyalgia for 3 to 4 years; asthma since

childhood; and a remote history of spina bifida (Exhibit B1F). While the representative has

more recently raised prior spina bifida as an issue, this is the only reference to this condition. 

In making this evaluation, the physician had the records from Dr. Bell. It should be noted

that objective records reflect no evidence of degenerative joint disease. On this occasion,

Mr. Allen denied any complaints regarding the lower extremities, had a normal gait, and

was able to get on and off the examination table without difficulty. The physician reports

normal range of motion in the back, neck , hips, knees, shoulders, elbows, and ankles;

straight leg raising was normal; strength, muscle bulk, and tone were normal; and sensory

responses and reflexes were normal. Despite the absence of deficits or objective

documentation, the diagnosis was of degenerative arthritis at the cervical level, in the low

back, and in the knees, elbows, and ankles. Finally, Dr. Vaishnav reports that the claimant

is capable of only standing or walking 30 minutes out of 8 hours, sitting 30 minutes out of 8

hours, and lifting a maximum of 10 pounds. The opinion in this consultative evaluation is

neither credible nor entitled to weight in this decision. There is complete lack of objective

basis for the limitation imposed; the functional level is substantially less than that

demonstrated by the claimant to this physician; and the limitations are greater than alleged

by the claimant or found by any source. 

The balance of the objective record provides scant support for the allegations of the

claimant that he experiences unrelenting pain of such severity that he is incapable of

functioning. As noted by psychologist Bowerly, despite his reported high pain, during an

extended evaluation Mr. Allen did not exhibit behavior associated with discomfort. The

claimant does not have a history of engaging in regular work activity, having relied on

public support and the support of relatives for almost 2 decades. Even the treating

neurologist, Dr. Bell, whom the representative urges be given greater credibility that the

medical expert, is not willing to state that the claimant is incapable of all work activity. In

responding to the question posed by the representative whether the reports of severe back

pain are inconsistent with the findings or lack of findings or MRI and x-ray evaluations, Dr.

Bell states that he has felt that the claimant has chronic lumbrosacral stain with secondary

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myofascial pain. He explains that attempts to find a correctable cause for this pain have not

shown anything which can be done and, while there is some degenerative disc disease, there

is nothing that could be surgically corrected (Exhibit B17F). Dr. Bell notes that the

claimant feels that his pain is so severe that he is unable to work, but his is obviously a

subjective evaluation, and again urges that a functional capacities evaluation be done to

clarify this. Finally, the physician states that he does not know if myofascial pain and

degenerative disc disease are sufficient to keep the claimant form working.

While Dr. Bell urges a functional capacities assessment, he evidently was never made aware

that a Physical Capacity Evaluation was conducted by Healthsouth, the source he

recommended, on October 7, 2002 (Exhibit B14E). At this time Mr. Allen reported that he

was able to sit 30 minutes, stand 15 minutes, walk 15 minutes, drive 30 minutes, and lift 15

pounds. The comprehensive evaluation quotes maximums in a day of sitting 4 hours,

standing 1.5 hours, and walking 2.5 hours, with lifting in the medium range. Gait is normal,

weight is 233 pounds, and Mr. Allen is unable to squat due to back pain; he is able to bend,

stoop, reach overhead, crawl, kneel, climb a ladder, twist, push and pull, stand, walk, and

climb stairs occasionally; and he is able to repetitively reach and sit frequently. The report

notes a score of 13 out of 16 on magnified illness behavior, and that the claimant is capable

of lifting a maximum of 30 pounds occasionally, which is medium activity based on the

United States Department of Labor, Dictionary of Occupational Titles. The evaluation then

states that due to poor body mechanics and poor tolerance to squatting and stooping, Mr.

Allen would be better suited to light activity up to 8 hours a day.

On July 16, 2004, Dr. Bell responded to a form submitted by the representative regarding

physical capacities and disorder of the spine (Exhibit B19F). The physician did not

complete this form, instead writing that he thought that the claimant needs a physical

capacity evaluation. Dr. Bell notes that some individuals do not experience a great deal of

improvement following back surgery. He states that, while it is possible that Mr. Allen

exaggerates the intensity of his chronic back pain, he is not able to give a definitive answer,

as there is no way he knows of objectively monitoring the severity of somebody’s pain.

While a comprehensive physical capacity assessment of the claimant was conducted in

October 2002, a second Physical Capability Evaluation, again at Healthsouth, was

conducted on March 16, 2004 (Exhibit B18F). Curiously, again the primary treating

neurologist has not been made aware of this assessment. At this time Mr. Allen reported

that he is able to sit for 30 minutes, stand 10 minutes, walk 20 minutes, drive 25 minutes,

and lift 8 pounds. His weight was 252 pounds. In contrast to his perceived abilities, based

on demonstrated ability, the claimant is rated as being capable of light work, again based on

the Dictionary of Occupational Titles. On actual performance, the claimant was lifting 25

pounds occasionally and 18 pounds frequently, but using poor body mechanics to perform

these lifts. The report states that he is suited for full time work in the light category of

work for up to 8 hours per day, with the ability to change positions of sitting, standing, and

walking as needed in accordance with his demonstrated abilities. Squatting and stooping

should be restricted due to poor tolerance and pain of 8/10 reported by the claimant. The

evaluation also states that the claimant had inconsistent performance and self limiting

behavior.

These comprehensive evaluations demonstrate clearly that the limitations and deficits

alleged by the claimant are not credible. During the evaluations Mr. Allen was fully aware

that he [sic] his performance was being observed, measured, and recorded. These

evaluations are precisely what treating neurologist J. Bruce Bell, M.D., states is needed to

determine the claimant’s actual ability level, as well as to assess his credibility regarding

pain complaints. Again, it must be pointed out that this treating physician evidently has no

knowledge of this available objective data. When combined with the balance of the record,

the record as a whole, and with consideration of all factors, it is clear that the claimant

retains the residual functional capacity for light exertional level physical activities

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compromised by exertional and non-exertional limitations. His ability to perform the full

range of light activities is limited by only occasional bending or squatting and being able to

sit or stand at will. Contact with the public is also limited to occasional. The credibility of

the claimant regarding allegations of disabling limitations and pain is significantly

compromised by these objective findings of the physical abilities he clearly demonstrated.

(Tr. 20-22). 

As evidenced by the above quoted explanation, the ALJ properly considered the medical opinions

related to Mr. Allen’s limitations. More specifically, the ALJ properly considered and evaluated the

opinions of Dr. Bell. The ALJ discredited Dr. Bell’s statements suggesting Mr. Allen was totally disable

based on the opinion of the medical expert (Dr. Rullman) and the physical evaluations completed by the

physical therapists at Healthsouth. The ALJ clearly explained he was relying on this medical evidence,

which supports the ALJ’s assessment of Plaintiff’s RFC and the conclusion that Mr. Allen retained the

ability to certain types of light work. The ALJ was entitled to rely on the opinions of the medical expert

(Dr. Rullman, who was a nonexamining physician) along with the objective physical assessments made by

Plaintiff’s physical therapists (Healthsouth), rather than the statements made by Dr. Bell (plaintiff’s treating

physician) and argued by Plaintiff suggesting he was completely disabled.

B. THE ALJ PROPERLY WEIGHED MR. ALLEN’S CREDIBILITY

Bunnell v. Sullivan, 947 F.2d 341 (9th Cir. 1991) (en banc), is controlling Ninth Circuit authority

on evaluating plaintiff's subjective complaints. Bunnell requires the ALJ findings to be properly supported

by the record, and "must be sufficiently specific to allow a reviewing court to conclude the adjudicator

rejected the claimant's testimony on permissible grounds and did not ‘arbitrarily discredit a claimant's

testimony regarding pain.’" Id. at 345-46 (quoting Elam v. Railroad Retirement Bd., 921 F.2d 1210, 1215

(11th Cir. 1991)). An ALJ may reject a claimant’s subjective complaints, if the claimant is able to perform

household chores and other activities that involve many of the same physical tasks as a particular type of

job. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) However, as further explained in Fair v. Bowen,

supra, and Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996), the Social Security Act does not require

that claimants be utterly incapacitated to be eligible for benefits, and many home activities may not be

easily transferrable to a work environment where it might be impossible to rest periodically.

Here, plaintiff raises the issue of whether the ALJ erred in finding plaintiff’s testimony not credible.

After reviewing the record, the court finds substantial evidence in the record supports the ALJ’s analysis. 

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As noted above in discussion of the medical evidence, the ALJ specifically noted the inconsistency between

Plaintiff’s allegations regarding the severity of his limitations and the assessments made by the physical

therapists at Healthsouth. The record indicates inconsistency of effort in

strength testing on Plaintiff’s physical capacities examination (Tr. 312), and in October 2002, evaluators

noted 13 of 16 magnified illness behaviors and, again, identified poor effort (Tr. 175). 

After reviewing the ALJ’s decision and the administrative record, it is clear the ALJ has provided

sufficient evidence to discredit the Plaintiff’s allegations of total disability. Accordingly, the ALJ properly

discredited plaintiff’s testimony and allegations suggesting total disability.

C. SUBSTANTIAL EVIDENCE SUPPORTS THE ALJ’S FINDING THAT MR. ALLEN IS ABLE TO PERFORM

CERTAIN TYPES OF LIGHT WORK

Plaintiff argues the ALJ erred when he relied on the Vocational Expert’s testimony. Here the ALJ

relied on the Vocational Expert’s testimony to conclude plaintiff retained the ability to performing work

within the national economy, i.e., small product assembly and cannery worker. 

At step-five of the administrative process the burden of proof shifts to the Commissioner to

produce evidence of other jobs existing in significant numbers in the national economy that Plaintiff could

perform in light of his age, education, work experience, and residual functional capacity. See Tackett v.

Apfel,180 F.3d 1094,1099 (9th Cir. 1999); Roberts v. Shalala, 66 F.3d 179, 184 (9th Civ. 1995). In

Tackett, the court noted “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 perform: (a) by the

testimony of a vocational expert, or (b) by reference to the Medical-Vocational Guidelines at 20 C.F.R. Pt.

404, subpt. P, app. 2.” Id.

Plaintiff’s allegation that the ALJ erred when he relied on the Vocational Expert’s testimony is

without merit. Plaintiff’s argument is based on the allegation that the ALJ failed to properly take into

account the medical evidence, particularly the opinions of Dr. Bell, and that the ALJ failed to properly

credit Plaintiff’s allegations regarding the severity of his impairments. As explained above, the ALJ did not

err in his analysis of the medical evidence or Plaintiff’s credibility. The ALJ is not obligated to accept all of

a claimant’s proposed limitations, as long as the ALJ’s findings are supported by substantial evidence. See

Osenbrock v. Apfel, 240 F.3d 1157, 1163-65 (9th Cir. 2001). Accordingly, the ALJ properly questioned

the Vocational Expert and relied on the testimony.

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CONCLUSION

Based on the foregoing discussion, the Court should affirm the Administration’s final decision

denying plaintiff’s application for social security disability benefits. Pursuant to 28 U.S.C. § 636(b)(1) and

Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this

Report to file written objections. See also Fed.R.Civ.P. 6. Failure to file objections will result in a waiver

of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140 (1985). Accommodating the

time limit imposed by Rule 72(b), the clerk is directed to set the matter for consideration on January 12,

2007, as noted in the caption.

DATED this 21st day of December, 2007.

 /s/ J. Kelley Arnold 

J. Kelley Arnold

U.S. Magistrate Judge

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