The opinion of the court was delivered by: Stephen J. Hillman United States Magistrate Judge
This matter is before the Court to review the Administrative Law Judge's ("ALJ") denial of Plaintiff's application for Disability Insurance Benefits ("DIB") benefits. Plaintiff and Defendant have filed their respective pleadings and the parties have filed a Joint Stipulation dated February 25, 2009. The parties have consented to the jurisdiction of the Magistrate Judge.
Plaintiff filed an application for DIB benefits on October 1, 2003, alleging disability as the result of back problems since September 14, 2001. The ALJ determined that Plaintiff was disabled between September 24, 2001 and May 1, 2003, following diskectomy and nucleoplasty surgery on August 26, 2002 and a spinal fusion on April 3, 2003. On May 10, 2003, Plaintiff applied for a continuation of his disability benefits, however his application was denied. Plaintiff's application was reconsidered and again denied on November 20, 2003. Plaintiff filed a timely Request for Hearing on January 20, 2004 and a hearing was held before ALJ John W. Belcher on November 18, 2004. ALJ Belcher denied Plaintiff's DIB application on February 18, 2005. Plaintiff filed a Request for Review of ALJ Belcher's decision, which the Appeals Council denied on October 14, 2005. Plaintiff filed a Complaint with this court, which remanded the case for further proceedings on November 17, 2006. A new hearing was held before ALJ Joseph D. Schloss on November 8, 2007. The ALJ issued an opinion on February 6, 2008, holding that Plaintiff was disabled only until May 1, 2003. Plaintiff appealed from the Commissioner's denial of disability benefits, and filed a new Complaint in this Court on July 15, 2008.
Under 42 U.S.C § 405(g), this court reviews the Commissioner's decision to determine if: (1) the Commissioner's findings are supported by substantial evidence; and (2) the Commissioner used proper legal standards. DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means "more than a mere scintilla," Richardson v. Perales, 402 U.S. 389, 401 (1971), but "less than a preponderance." Desrosiers v. Secretary of Health & Human Servs., 846 F. 2d 59, 60 (9th Cir. 1973), cert denied., Torske v. Weinberger, 417 U.S. 933 (1974); Harvey v. Richardson, 451 F. 2d 589, 590 (9th Cir. 1971).
It is the duty of this court to review the record as a whole and to consider adverse as well as supporting evidence. Green v. Heckler, 803 F. 2d 528, 529-30 (9th Cir. 1986). The court is required to uphold the decision of the Commissioner where evidence is susceptible of more than one rational interpretation. Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984). The court has the authority to affirm, modify or reverse the Commissioner's decision "with or without remanding the cause for rehearing." 42 U.S.C. § 405 (g). Remand is appropriate where additional proceedings would remedy defects in the Commissioner's decision. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989).
The Commissioner has established a five-step sequential evaluation for determining whether a person is disabled. First, it is determined whether the person is engaged in "substantial gainful activity." If so, disability benefits are denied. Second, if the person is not so engaged, it is determined if the person has a medically severe impairment or combination of impairments. If the person does not have a severe impairment or combination of impairments, benefits are denied. Third, if the person has a severe impairment, it is determined whether the impairment meets or equals one of a number of "listed impairments." If the impairment meets or equals a "listed impairment," the person is conclusively presumed disabled. Fourth, if the impairment does not meet or equal the "listed impairments," it is determined whether the impairment prevents the person from performing past relevant work. If the person can perform past relevant work, benefits are denied. Fifth, if the person cannot perform past relevant work, the burden shifts to the Commissioner to show that the person is able to perform other kinds of work. 20 C.F.R. §404.1520 (1994); Bowen v. Yuckert, 482 U.S. 137, 140-2 (1987).
Issue 1: The Second ALJ fully and fairly developed the record by considering all available medical evidence.
The ALJ has an independent "duty to fully and fairly develop the record to assure that the claimant's interests are considered." Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996) (quoting Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983)). Where evidence is ambiguous, or the ALJ finds the record is inadequate to allow for proper evidentiary evaluation, the ALJ has a duty to conduct an appropriate inquiry. Tonapetyan v. Halter,242 F.3d 1144, 1150 (9th Cir. 2001).
Plaintiff contends that the ALJ failed to fully and fairly develop the record because he did not order an objective consultative exam of Plaintiff, and disregarded the findings of Dr. Cazares, Plaintiff's chiropractor, and the December 2004 findings of Dr. Platt, Plaintiff's treating orthopedic surgeon. Defendant argues that the ALJ's denial of Plaintiff's DIB claim was grounded on substantial evidence, consisting of the December 2003 findings of Dr. Platt and the testimony of a medical expert, Dr. Lyons. As such, Defendant contends that the ALJ's duty to conduct further inquiry was not triggered.
Plaintiff was found disabled between September 14, 2001 and May 1, 2003. (AR 408). During this period, Plaintiff underwent diskectomy/nucleoplasty surgery on August 26, 2002, and a spinal fusion on April 3, 2003. Plaintiff's prognosis following his spinal fusion was good, particularly after the removal of his PCA tube. Following Plaintiff's initial post-operative prognosis, he was examined by chiropractor Dr. Marco Cazares on September 24, 2003, and by treating orthopedic surgeon, Dr. Arthur Platt, in December 2003. (AR 411). Although Dr. Cazares found that Plaintiff was disabled, Dr. Platt's December 2003 examination of Plaintiff found him "permanent and stationary" and able to perform light work, consisting of standing or walking and minimum demands for physical effort. (AR 321).
Since no treating or examining medical records exist post Plaintiff's December 2003 examination by Dr. Platt, both ALJs relied on the testimony of non-examining and non-treating physician, Dr. James Lyons, to support the denial of Plaintiff's DIB claim. Dr. Lyons testified that Plaintiff's disability ended on May 1, 2003 when his PCA tube was removed, which is supported by Dr. Platt's subsequent finding that Plaintiff was not disabled. As such, Dr. Lyons' testimony amounts to substantial evidence since the findings of non-treating and ...