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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

JUDITH C. SOMERS,

Plaintiff,

v.

JO ANNE B. BARNHART, Commissioner of

Social Security Administration,

Defendant.

CASE NO. C06-5007RJB

REPORT AND

RECOMMENDATION

Noted for September 15, 2006

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 for further consideration.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff, Judith Somers, was born in 1945. She completed high school and one year of college

level courses. She has past work experience as a secretary (10 years), bookkeeper (5 years) and a personal

secretary for a philanthropist (for over 20 years). She began working at the age of 18 and worked

continuously until September 2002, when she and her husband moved to Sequim, Washington. She alleges

she has been unable to work since September 13, 2002. Plaintiff argues the administration should have

found her disabled base on medical impairments related to her upper right extremity (chronic rotator cuff

tear, Residual Sympathetic Dystrophy of the right shoulder and arm and chronic elbow, wrist and finger

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pain), internal organs, and hip.

She filed an application for Social Security Disability benefits on December 10, 2003. Her claim

was initially denied, and then denied again after being considered by an Administrative Law Judge (“ALJ”). 

The ALJ found that Ms. Somers was not capable of performing her past relevant work as a bookkeeper.

On December 23, 2005, the Administrative Appeals Council denied Plaintiff’s request for review, making

the ALJ’s decision the final decision for review.

Plaintiff now brings the instant action pursuant to 205(g) of the Social Security Act ("the Act"), as

amended, 42 U.S.C. § 405(g), to obtain judicial review of the defendant's final decision denying plaintiff's

application for disability insurance benefits. Plaintiff specifically contends: (1) the ALJ analysis of

Plaintiff’s residual functional capacity is not supported by substantial evidence; (2) the ALJ improperly

rejected the opinions of Plaintiff’s treating physician; (3) the ALJ improperly discredited Ms. Somers’

subjective pain complaints; and (4) the ALJ’s hypothetical question posed to the Vocational Expert was

incomplete.

DISCUSSION

The Commissioner’s decision must be upheld if the ALJ applied the proper legal standard and the

decision is supported by substantial evidence in the record. Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th

Cir. 1992); 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, this Court must uphold the Commissioner’s decision. Allen v. Heckler, 749 F.2d 577, 579

(9th Cir. 1984).

The burden is on the claimant to prove that she is disabled within the meaning of the Social

Security Act. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). Disability is the “inability to engage

in any substantial gainful activity by reason of any medically determinable physical or mental impairment

which can be expected to result in death or which has lasted or can be expected to last for a continuous

period of not less than 12 months[.]” 42 U.S.C. §§ 423(d)(1)(A), 423(d)(1)(A). A claimant is disabled only

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if her impairments are of such severity that she is not only unable to do her previous work but cannot,

considering age, education, and work experience, engage in any other substantial gainful activity existing in

the national economy. See 42 U.S.C. §§ 423(d)(2)(A), 1382c (a)(3)(B).

In the case at hand, the ALJ applied the five-step sequential evaluation process for determining

whether a claimant is disabled. At step one, the ALJ found that Plaintiff had not engaged in substantial

gainful activity since the alleged disability onset date. At step two, the ALJ found that Plaintiff had the

following severe impairments: right rotator cuff tear, status post arthroscopy, and headaches. At step

three, the ALJ found that Plaintiff’ s impairments, alone or in combination, did not meet or equal the

requirements of a listed impairment. The ALJ determined that Plaintiff retained the following residual

functional capacity (“RFC”): she could lift and carry 20 pounds occasionally and 10 pounds frequently with

her non-dominant left arm; stand and/or walk for 6 hours in an 8 hour day and sit for 6 hours in an 8-hour

day; she was limited to only occasional balancing and crawling, but should avoid climbing ladders, ropes,

and scaffolds; she was precluded from over-the-shoulder raising with her dominant right arm; and she

should avoid concentrated exposure to hazards such as machinery or heights. At step four, the ALJ found

that Plaintiff was able to perform her past relevant work as a bookkeeper. Thus, the ALJ concluded Ms.

Somers was not disabled.

A. THE ALJ PROPERLY WEIGHED THE MEDICAL EVIDENCE IN THE RECORD

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

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that conflicted with the treating physician’s opinion. 

Here, plaintiff contends the ALJ improperly evaluated the medical evidence when he determined

plaintiff’s residual functional capacity, and the ALJ erroneously failed to consider the opinion of Dr.

Weber. A review of the ALJ’s decision indicates the medical records from February 1987 through

February 2005 were considered. The ALJ summarized the medical reports and the hearing testimony,

concluding Ms. Somers’ right rotator cuff tear, status post arthroscopy, and headaches were “severe”

impairments, as noted above. The ALJ also found Ms. Somers’ had several non-severe impairments,

including diabetes, hypertension and an affective or adjustment disorder. Based on the entire record as a

whole, the ALJ found Ms. Somers retained the capacity to lift and carry 20 pounds occasionally and 10

pounds frequently with her non-dominant left arm; stand and/or walk for 6 hours in an 8 hour day and sit

for 6 hours in an 8-hour day; she was limited to only occasional balancing and crawling, but should avoid

climbing ladders, ropes, and scaffolds; she was precluded from over-the-shoulder raising with her dominant

right arm; and she should avoid concentrated exposure to hazards such as machinery or heights. The

medical evidence relied on by the ALJ supports this assessment. The ALJ wrote:

The record reflects that the claimant sustained an on-the-job injury in November 1984. She

injured her right shoulder. She was treated conservatively for 1-1/2 years. An arthrogram

was performed which showed a tear of the rotator cuff. Subsequently, she had an open

repair through a short anterior incision in April 1986. She did well and returned to work in

July1986. However, her shoulder became progressively more painful and weak. She had

difficulty reaching forward and above her shoulder level. She was diagnosed with anterior

impingement syndrome (Exhibit 1F/4). Subsequently, she underwent an arthroscopic

anterior acromionectomy and debridement on February 4, 1987 (Exhibit 1F/2). She

returned to work in March 1987 (Exhibit 2F/79).

Medical records from Jerome B. Brem, M.D., the claimant's rheumatologist, indicate that he

has been treating the claimant for headaches for several years. He also provided treatment

for her upper right extremity pain (Exhibit 2F).

Due to continual problems with her right shoulder she underwent another arthroscopic

acromioplasty and debridement of scar from subacromial space on September 21, 1992

(Exhibit 3F/3). She eventually returned to full time work (Exhibit 2F/37).

In a physical examination at the Vancouver Clinic in June 2002 the claimant reported having

no problems. She described having cervical cancer in her 20s but did not under[go] any

surgery, chemotherapy or radiation. She further gave a medical history of a hysterectomy,

with an anterior and posterior repair in her early 30s. Her last Pap smear in April 2000 was

normal. She denied any difficulties with urinary or fecal incontinence. On examination

Elizabeth Morgan, M.D. noted the claimant was alert and oriented. She was in no acute

distress. Dr. Morgan found her examination to be essentially normal (Exhibit 10F/l-2).

In May 2003 the claimant went to Sherwood Medical Center to establish medical care. Paul

Hoque, M.D. saw the claimant and she reported that she had recently moved to Sequim

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from Vancouver, Washington. She stated she smoked half a pack of cigarettes per day and

rarely drank alcohol. She did not exercise. Upon review of systems, Dr. Hoque noted that

the claimant was generally negative except she complained of having a cough. She denied

having any pain, swelling, weakness or numbness. There was no evidence of sores, lesion or

rashes. Her weight was 126 pounds. Her extremities were without edema, without clubbing

and were symmetrical. Neurologically, she was within normal limits (Exhibit 1 7F/22-24).

On March 2, 2004 Elizabeth J. Borrone, M.D. conducted a consultative physical

examination on the claimant on March 2, 2004. The claimant stated that since her injury

with subsequent surgeries, she has been retrained by Workman's Compensation and has

been working at Community Southwest Washington Commission. She indicated she was a

bookkeeper and then a personal secretary in Vancouver, Washington which lasted nine

months. She stated she has not worked since September 2002. Dr. Borrone noted the

claimant reported she continues to have difficulties with her right upper extremity

(shoulder) with limited ability to use her arm, elbow, wrist and fingers. She stated she can

barely use her right arm. Dr. Borrone was unclear how a rotator cuff injury could cause

tendonitis at the elbow and then produce problems with flexion and extension at the wrist as

well as cause the digits in her right hand to move very slowly. The claimant reported she

only slept 4 hours a night due to right shoulder pain, although she admitted to napping. On

examination, Dr. Borrone noted the clamant weighed 135 pounds and was 62 1⁄2 inches in

height. She held herself very stiffly and had an unusual gait in which her legs were very

stiff, particularly her knees. She sat with her right are held down with the hand flat against

the chair seat and her arm pressed close against her body, not moving her shoulder. Dr.

Borrone noted her upper extremities were normally developed, however, she had a number

of surgical scars on the right shoulder. The right elbow had limited extension and flexion,

whereas the left elbow was fully functional. Both arms were able to pronate and supinate

fully. She held her right forearm and wrist very tightly to her body. She displayed great

difficulty in flexing the right thumb, yet when it was put into that position she did it

relatively easily. There was full flexion at both the MP joint and the IP joint. The claimant

was very hesitant about doing anything with the right hand. Dr. Borrone found no obvious

anomalies to the digits or the thumb, and there was no evidence of arthritis. Her left upper

extremity was normal and she had full flexion and extension throughout. On neurological

examination, she was noted to be oriented. She communicated readily and easily with the

examiner. Her motor strength in the right arm was weaker then the left as well as right grip

was much weaker than left grip. However, her motor strength of the lower extremities was

equal.

Tr. 22-23. 

The medical evidence in the record as a whole, supports the ALJ’s RFC finding and conclusions

that plaintiff is capable of performing sedentary skilled work, including the work she did in the past as a

bookkeeper. The opinions and records of Dr. Brem, Dr. Morgan, Dr. Hoque, and Dr. Borrone, discussed

by the ALJ above, provide substantial evidence to support the ALJ’s decision. 

Plaintiff argues the ALJ did not adequately address the opinion of Dr. Weber. According to the

record, Dr. Weber examined Ms. Somers in February 21, 2005. The ALJ addressed this in his decision,

noting the Dr. Weber was seen by Ms. Somers on a complaint of loss of urine control. The ALJ noted the

Dr. Black observed no muscle weakness and a normal, stable gait during the exam. Tr. 25. Plaintiff

contends the ALJ’s evaluation was unfair, particularly in context of Dr. Weber’s follow up evaluation and

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report, dated September 12, 2005. The court is not persuaded by Plaintiff’s arguments. The ALJ did not

have Dr. Weber’s later evaluation to consider and incorporate into his decision, which is dated July 7,

2005. Most importantly, it is the ALJ who is responsible for interpreting the medical evidence in the

context of the whole record, and here, the ALJ’s analysis was reasonable and it is supported by substantial

evidence in the record. Accordingly, the court is unable to find any error in the decision. 

B. THE ALJ PROPERLY WEIGHED MS. SOMERS’ CREDIBILITY

As stated by Plaintiff, to a degree this matter “boils down to a question of credibility.” Plaintiff’s

Reply Brief (Doc. 15) at 8. When evaluating plaintiff's subjective complaints the ALJ findings must 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.’" Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991) (en

banc)(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 argues the ALJ failed to give specific and legitimate reasons for rejecting Plaintiff’s

allegations of total disability and improperly relied on the opinion of Dr. Borrone. After reviewing the

ALJ’s decisoin and the administrative record, the court finds that the ALJ properly weighed plaintiff’s

credibility. The ALJ stated in his opinion the following:

The claimant’s statements concerning her impairments and their impact on her ability to

work are not credible. I find the testimony of the claimant and her spouse are not credible. 

There is indication of symptom magnification which is noted in the consultative examination

(Exhibit 12F/3). Her last job in Vancouver (in September 2002) ended not because of her

alleged impairments but because the couple moved to Sequim to retire. Although the

claimant testified to having hand tremors there is no objective medical evidence in the

record of hand tremors. In February 2005 the claimant first reported urinary incontinence

(Exhibit 19F/1). Although the claimant has had right shoulder pain and headaches for many

years she has worked (Exhibit 12F/1). On examination she was noted to be in no acute or

apparent distress (Exhibits 19F/1; 17F/2; 10F/2, 61). Further the objective medical

evidence fails to fully support the claimant’s allegations of disabling symptoms and

limitations (Exhibits 12F; 10F/2; 14F/2; 17F/22-24). Additionally, her CT scans have been

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unremarkable (Exhibits 14F/1; 16F/2).

Further, I find that the claimant’s husband was urging her treating doctor to support a claim

for disability in 1999 even though the doctor was doubtful that she qualified (Exhibit

2F/22).

There is evidence that the claimant receives retirement benefits (Exhibit 15F/4) which would

provide disincentive to seek out and perform past relevant work or other work within her

residual functional capacity as outlined below.

Although the claimant has described daily activities which are fairly limited, two factors

weight [sic] against considering these allegations to be strong evidence in favor of finding

the claimant disabled. First, allegedly limited daily activities cannot be objectively verified

with any reasonable degree of certainty. Secondly, even if the claimant’s daily activities are

truly as limited as alleged, it is difficult to attribute that degree of limitations to the

claimant’s medical condition, especially since a medical examiner concluded her symptoms

seemed to be excessive in comparison to objective findings (Exhibits 12F/3; 15F/1). Overall,

the claimant’s reported limited daily activities are considered to be outweighed by other

more persuasive evidence in the record. 

Tr. 27.

Substantial evidence, cited by the ALJ, supports the ALJ’s analysis of Ms. Somers’ credibility. For

example, the ALJ relied on the evaluation by Dr. Borrone (Tr. 329-333; Exhibit 12F). Significantly, Dr.

Borrone wrote:

I have grave reservations in this case. Everything is done in far too studied an approach and deliberation

the exam room She was able to completely lift the right arm and shoulder when she was at the front desk

with the receptionist, using the right arm then and elevating the right shoulder. Her gait in the reception

room before and after the exam was quite normal compared to the very steady, deliberate, hesitant gait

which she demonstrated when I asked her to walk across the room in the exam room. Mrs. Somers may

have a vastly more injured right shoulder than I am appreciating, but I am unconvinced that the problem

with the shoulder should produce the limitations that she demonstrates in the right elbow, the right wrist,

and the right hand. Those digits I feel could have moved far more normally and it was, in my view,

watching some very deceptive movements. 

(Tr. 331). In addition to Dr. Borrone, the ALJ further noted that several physicians did note minimal

physical impairments which support his finding that Ms. Somers’ allegations of total disability are not

credible (Dr. Michels, Tr. 347; Dr. Morgan, Tr. 247; Dr. Brem, Tr. 124; Dr. Dr. Black, Tr. 340; Dr.

Hoque, Tr. 370). As discussed above, the medical evidence was properly evaluated by the ALJ. In sum

the court finds substantial evidence supports the ALJ’s findings regarding the credibility of Ms. Somers’

allegations of total disability.

C. THE ALJ’S PROPERLY RELIED ON TESTIMONY OFFERED BY THE VOCATIONAL EXPERT

Plaintiff argues the ALJ erred at step-four of evaluation process due to the reliance of the ALJ on

the vocational expert’s testimony. Plaintiff argues the vocational expert’s opinion, that Ms. Somers is

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capable of returning to her past work as a bookkeeper, is flawed due to the vague hypothetical posed by

the ALJ. 

Where there is conflicting evidence the ALJ may resolve such conflicts, and the ALJ’s findings will

be upheld where the weight of the medical evidence supports the hypothetical questions posed by the ALJ. 

Martinez v. Heckler, 807 F.2d 771 (9th Cir. 1986). A vocational hypothetical must set forth all the reliable

limitations and restrictions of the particular claimant that are supported by substantial evidence. See

Osenbrock, 240 F.3d at 1162-63; Magallanes v. Bowen, 881 F.2d 747, 756 (9th Cir. 1989). Although the

hypothetical may be based on evidence which is disputed, the assumptions in the hypothetical must be

supported by the record. Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995)(citing Gallant v.

Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984)).

Here, relying on testimony from a vocational expert, the ALJ concluded that Ms. Somers could

perform her past work as a bookkeeper. At the hearing, the ALJ asked the vocational expert the following:

So the hypothetical involves a female, who was born in February of 1945, so she’s currently

aged 60, and she’s alleging disability since September of 2002, when she was 57, so the age

range for the period we’re looking at is 57 to 60. This lady has a high school education,

plus one year of college. And her work history is Mrs. Somers’, so there we incorporate

the testimony, which had those two jobs. She has a number of physical impairments, and

one significant one affecting her dominant right arm. It’s a shoulder injury. She’ been

operated on three times, and it hasn’t responded very well to the surgeries, but I think

what’s significant from a vocational standpoint is how is she limited. And I’ll refer here,

Mr. Rogers, to the disability services assessment of functions. I may make some changes as

we go along here. That’s at Exhibit 13-F. So let’s say, at least hypothetically, that she’s

capable of lifting ten pounds frequently, 20 occasionally, and this would be primarily with

the non-dominant left arm. That she can be on her feet as much as six hours or more,

cumulatively, in an eight hour work day, and the same for sitting. We have a number of

postural limitations, and these are that she’s capable only of occasional stooping, and

occasional crawling. Occasional means, cumulatively, up to one-third of a work day, but no

more. She should never, because of a balancing problem, never be on ladders, ropes, or

scaffolds. No, on, on the dominant right arm, no above the shoulder reaching. And there is

an environmental limitation, and it’s this, that she must avoid concentrated exposure to

hazardous conditions, such as moving machinery, if you fell against it, she might be injured,

or being on heights, again problem if she fell. So that’s, let’s say that’s a first hypothetical. 

Could the hypothetical individual do the kinds of secretary work, secretarial work, that Mrs.

Somers has done?

Tr. 456-457. In response, the vocational expert stated Mr. Somers would be able to do the type of work

she has done in the past as a bookkeeper. Tr. 458. 

 Plaintiff’s argument is based on the premise that the ALJ erred when he evaluated Plaintiff’s

testimony, the medical evidence and Plaintiff’s RFC, discussed above. The court finds no error in the

ALJ’s evaluation of Plaintiff’s allegations, the ALJ’s review of the medical evidence or the RFC analysis,

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and thus, the court finds no error in the hypothetical, which is based on the ALJ’s RFC, posed to the

vocational expert or in the ALJ’s reliance on the vocational expert’s testimony. 

CONCLUSION

Based on the foregoing, the Court should AFFIRM the administration’s decision. 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 September 15, 2006, as noted in the caption.

DATED this 25th day of August, 2006.

/s/ J. Kelley Arnold 

J. Kelley Arnold

U.S. Magistrate Judge

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