The opinion of the court was delivered by: Andrew J. Wistrich United States Magistrate Judge
Plaintiff filed this action seeking reversal of the decision of defendant, the Commissioner of the Social Security Administration (the "Commissioner"), denying plaintiff's application for disability insurance benefits. The parties have filed a Joint Stipulation ("JS") setting forth their contentions with respect to each disputed issue.
The procedural facts are not disputed and are recited in the Joint Stipulation. [See JS 2]. Plaintiff alleged that he became disabled on December 29, 2005 due to back problems, leg pain, depression, and anxiety. [JS 2; Administrative Record ("AR") 40-44, 150]. In a written hearing decision that constitutes the Commissioner's final decision in this case, an administrative law judge (the "ALJ") concluded that plaintiff was disabled for a closed period, from December 29, 2005 through December 29, 2006, due to a severe impairment described as lumbosacral spine disorder status post spinal fusion. [JS 2-3; AR 15, 28-31] The ALJ found that medical improvement related to plaintiff's ability to work occurred as of December 30, 2006. The ALJ found that beginning on that date, plaintiff had the residual functional capacity ("RFC") for a restricted range of light work, in that he could lift and carry 20 pounds occasionally and 10 pounds frequently, stand or walk for up to 6 hours in an 8-hour work day, occasionally push or pull with his arms and legs, occasionally climb ramps and stairs, but not climb ladders, ropes, or scaffolds, and occasionally bend, stoop, crouch, kneel, and crawl. [JS 3; AR 15]. The ALJ concluded that plaintiff was not disabled beginning on December 30, 3006 because his RFC as of that date did not preclude him from performing his past relevant work as a vehicle coordinator. [JS 3; AR 36].
The Commissioner's denial of benefits should be disturbed only if it is not supported by substantial evidence or is based on legal error. Stout v. Comm'r Social Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). "Substantial evidence" means "more than a mere scintilla, but less than a preponderance." Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005). "It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)(internal quotation marks omitted). The court is required to review the record as a whole and to consider evidence detracting from the decision as well as evidence supporting the decision. Robbins v. Soc. Sec. Admin, 466 F.3d 880, 882 (9th Cir. 2006); Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas, 278 F.3d at 954 (citing Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir.1999)).
Medical improvement standard Plaintiff contends that in finding that his disability ended as of December 30, 2006, the ALJ erred in rejecting the opinion of Dr. Freeman of Griffin Medical Group.
Once a claimant is found disabled under the Social Security Act, a presumption of continuing disability arises that affects the burden of production. See Bellamy v. Sec'y of Health & Human Servs., 755 F.2d 1380, 1381 (9th Cir. 1985); Mendoza v. Barnhart, 436 F.Supp.2d 1110, 1113 (C.D. Cal. 2000). Although the claimant retains the burden of persuasion, the presumption of continuing disability shifts to the Commissioner the burden to come forward with evidence to meet or rebut the presumption. See Bellamy, 755 F.2d at 1381. Benefits cannot be terminated unless substantial evidence demonstrates medical improvement in the claimant's impairment such that the claimant is able to engage in substantial gainful activity. See 42 U.S.C. § 423(f); Murray v. Heckler, 722 F.2d 499, 500 (9th Cir. 1983); see also 20 C.F.R. §§ 404.1594(a), 416.994(b). "The medical improvement standard applies to cases, such as here, involving a closed period of disability." Mendoza v. Apfel, 88 F.Supp.2d 1108, 1113 (C.D. Cal. 2000) (citing Shepherd v. Apfel, 184 F.3d 1196, 1200 (10th Cir. 1999); Jones v. Shalala, 10 F.3d 522, 524 (7th Cir.1993); Pickett v. Bowen, 833 F.2d 288 (9th Cir. 1987)).
"Medical improvement" is defined as any decrease in the medical severity of your impairment(s) which was present at the time of the most recent favorable medical decision that you were disabled or continued to be disabled. A determination that there has been a decrease in medical severity must be based on changes (improvement) in the symptoms, signs and/or laboratory findings associated with your impairment(s) (see § 404.1528).
20 C.F.R. §§ 404.1594(b)(1), 416.994(b)(1)(i).
In finding plaintiff disabled during the closed period, the ALJ noted that plaintiff sustained an injury to his low back at work in August 2002 that required extensive conservative treatment as well as spinal fusion surgery, which plaintiff underwent on February 27, 2006. [AR 28-29]. The ALJ found that during the closed period, plaintiff was unable to work a 40-hour week at even a sedentary level due to chronic pain, medication side effects, chronic fatigue, and rehabilitation following his spinal surgery, and that during this period plaintiff would have missed at least three days of work a month due to physical therapy, doctors' appointments, and hospitalization. [AR 29].
The ALJ relied in part on the opinion of plaintiff's workers' compensation treating orthopedist, John Freeman, M.D., to find that medical improvement occurred related to the ability to work. Plaintiff contends that the ALJ selectively credited parts of Dr. Freeman's opinion that supported the ALJ's conclusions and impermissibly rejected Dr. Freeman's opinion in other respects.
Dr. Freeman initially treated plaintiff on October 23, 2003 in connection with a workers' compensation claim related to plaintiff's August 2002 on-the-job back injury. [AR 352-357]. Dr. Freeman opined that plaintiff's condition was permanent and stationary in May 2005, prior to *fn1 plaintiff's decision to undergo spinal fusion surgery. [See AR 436].
After the end of the closed period of disability on December 30, 2006, plaintiff saw Dr. Freeman monthly from August 2007 through December 2007, and again in February 2008, April 2008, and May 2008. Dr. Freeman recommended that ...