The opinion of the court was delivered by: Patrick J. Walsh United States Magistrate Judge
MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiff's appeal of a decision by Defendant Social Security Administration ("the Agency"), denying her application for Disability Insurance benefits ("DIB"). Plaintiff claims that the Administrative Law Judge ("ALJ") did not: 1) comply with the remand orders of this Court and the Appeals Council; 2) properly consider her testimony; and 3) pose a complete hypothetical question to the vocational expert. (Joint Stip. at 3-6, 12-14, 18-20.) Because the Agency's decision that Plaintiff was not disabled within the meaning of the Social Security Act is supported by substantial evidence, it is affirmed.
II. SUMMARY OF PROCEEDINGS
Plaintiff applied for DIB on April 1, 2004. (Administrative Record ("AR") 26.) The Agency denied the applications initially and on reconsideration. (AR 28-32, 38-42.) Plaintiff then requested and was granted a hearing before an ALJ. (AR 43, 45-46.) Plaintiff appeared with counsel and testified at a hearing on September 13, 2005, and at a second hearing on February 17, 2006. (AR 349-62, 363-80.) On May 25, 2006, the ALJ issued a decision denying benefits. (AR 9-16.) Plaintiff appealed to the Appeals Council, which denied review. She then filed an appeal in this court. Thereafter, the parties stipulated to a remand of the action. (AR 424-27.)
On July 26, 2007, the Appeals Council vacated the ALJ's decision and remanded the case to the ALJ with instructions. (AR 428-31.) The ALJ held a new hearing on May 9, 2008, at which Plaintiff again appeared with counsel and testified. (AR 643-58.) On June 25, 2008, the ALJ issued a new decision denying benefits. (AR 381-93.) After the Appeals Council denied review, Plaintiff commenced the instant action.
A. The ALJ's Compliance with the Remand Orders
In her first claim of error, Plaintiff contends that the ALJ did not comply with the directives of the remand orders to evaluate the treating source opinions because he failed to properly consider the October 2007 opinions of treating physicians Luis Francisco and Suzanne Enloe-Whitaker. (Joint Stip. at 3-6.) For the following reasons, this claim is rejected.
An ALJ must comply with a district court's remand order. See, e.g., Sullivan v. Hudson, 490 U.S. 877, 886 (1989) ("Deviation from the [district] court's remand order in the subsequent administrative proceedings is itself legal error."). The same rule applies to orders from the Appeals Council. 20 C.F.R. § 404.977(b) (an ALJ "shall take any action that is ordered by the Appeals Council and may take any additional action that is not inconsistent with the Appeal Council's remand order."); see also Thompson v. Barnhart, 2006 WL 709795, at *11-12 (E.D. Pa. Mar. 15, 2006) (holding that ALJ committed legal error by failing to obtain mental status examination as directed by Appeals Council).
The Court's remand order instructed the ALJ to "evaluate all medical opinions of record giving legitimate reasons supported by substantial evidence in the record for rejection of any contradicted treating physician opinion."*fn1 (AR 426-27.) In its order remanding to the ALJ, the Appeals Council ordered the ALJ to:
Give further consideration to the treating source opinions pursuant to the provisions of 20 C.F.R. § 404.1527 and Social Security Rulings 96-2p and 96-5p, and explain the weight given to such opinion evidence. As appropriate, the [ALJ] may request the treating sources to provide additional evidence and/or further clarification . . .[.] (AR 431.)
The Agency argues that these instructions only applied to Dr. Robert Johnson and Dr. Leon Minkoff's opinions, and that Plaintiff has not challenged the ALJ's consideration on remand of those opinions. (Joint Stip. at 6-7.) The Agency argues further that there is no evidence that either Dr. Francisco or Dr. Enloe-Whitaker treated Plaintiff before her last insured date (September 30, 2004), and, therefore, their opinions are not probative of disability. Alternatively, it argues that the ALJ gave specific and legitimate reasons for rejecting the opinions. (Joint Stip. at 7-12.) For the following reasons, the Court concludes that the ALJ properly considered the doctors' opinions and that, even if he overlooked the reports identified by Plaintiff, any error was harmless.
It is well-established that, "[b]y rule, the Social Security Administration favors the opinion of a treating physician over non-treating physicians." Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). Where the treating physician's opinion is contradicted by a non-treating physician's opinion, the ALJ must provide specific and legitimate reasons, supported by substantial evidence in the record, for ...