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Burridge v. Colvin

United States District Court, C.D. California, Western Division

June 17, 2016

ANN BURRIDGE, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Social Security Commissioner, Defendant.

          MEMORANDUM ORDER AND OPINION

          DOUGLAS F. McCORMICK United States Magistrate Judge

         Plaintiff Ann Burridge ("Burridge") appeals from the final decision of the Administrative Law Judge ("ALJ") denying her application for disability insurance benefits. On appeal, the Court concludes that the ALJ erred by not calling on the services of a medical advisor to determine the onset date of Burridge's physical impairment. The ALJ also erred in determining Burridge's physical limitations at step three and in discrediting her testimony. Therefore, the Court reverses the ALJ's decision and remands this matter for further administrative proceedings.

         I. BACKGROUND

         Burridge applied for disability insurance benefits on July 19, 2011, alleging disability that made her unable to work beginning on September 1, 2007. Administrative Record ("AR") 54-55, 64. Her date last insured for these benefits was March 31, 2008. Id.; see Joint Stipulation ("JS") at 2.[1]

         The Commissioner denied Burridge's claims in July 2011 and again on reconsideration in September 2012. AR 31-35, 41-44. Burridge, represented by counsel at this point, requested a hearing. AR 30. Burridge missed the first hearing due to a mistake about the date. AR 27, 325-39. Burridge testified at a second hearing on January 16, 2014. AR 340-62.

         The ALJ concluded that Burridge was not under a disability before March 31, 2008-the date she was last insured. AR 13. Applying the five-step sequential evaluation process, the ALJ found at step one that Burridge did not engage in substantial gainful activity during the relevant seven-month period. AR 15. At step two, the ALJ found that Burridge had a severe impairment of essential tremor. Id. At step three, the ALJ determined that Burridge did not have a listed impairment through the date last insured. AR 15-18. The ALJ also found that through the date last insured, Burridge had the residual functional capacity ("RFC") to perform a full range of work at all exertional levels, limited to unskilled work and occasional fine fingering. AR 19-22. After concluding that Burridge was unable to perform past relevant work, the ALJ found-based on the testimony of a vocational expert ("VE")-that jobs existed in the national economy that Burridge could have performed through the date last insured. AR 22-23. Specifically, the ALJ found that Plaintiff could work as a dishwasher and a furniture rental clerk. AR 23.

         II. ISSUES PRESENTED

         The parties present three issues: (1) whether, when considering the record as a whole, the ALJ's finding regarding Burridge's RFC is supported by substantial evidence; (2) whether the ALJ improperly evaluated Burridge's mental impairment at step two and issued an incomplete finding regarding Burridge's RFC, thus undermining the step five finding; and (3) whether the ALJ improperly discredited Burridge's testimony. JS at 3, 6-8.

         III. STANDARD OF REVIEW

         Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The ALJ's findings and decision should be upheld if they are free from legal error and are supported by substantial evidence based on the record as a whole. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means such relevant evidence as a reasonable person might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It is more than a scintilla, but less than a preponderance. Id. To determine whether substantial evidence supports a finding, the reviewing court "must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). "If the evidence can reasonably support either affirming or reversing, " the reviewing court "may not substitute its judgment" for that of the Commissioner. Id. at 720-21.

         IV.

         DISCUSSION

         A. The ALJ Erred in Failing to Call on a Medical Advisor to Determine Burridge's Physical Impairment Onset Date

         As an initial matter, Burridge argues that this Court should remand because the ALJ had "no medical opinion evidence" to support her RFC findings, given that she rejected all treating-source opinions and credited opinions that did not support the findings. JS at 5-6. This argument misstates the law and the record. The fact that no single medical opinion recommended the ALJ's ultimate RFC finding is not fatal. The RFC must "be based on all of the relevant evidence in the case record" and contain "a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations)." Social Security Ruling ("SSR") 96-8p, 1996 WL 374184 (July 2, 1996) (emphasis in original). Here, as the ALJ observed, Burridge's medical records supported the finding that Burridge suffered from the severe impairment of an essential tremor before the date last insured. AR 20-22; see, e.g., AR 85, 90, 95, 104, 115, 117, 119, 155-156, 159, 160, 162, 166, 178 (all records before the date last insured discussing Burridge's tremor). In short, the ALJ did not make up the "occasional fingering" restriction out of thin air, as Burridge implies.

         As part of this argument, however, Burridge asserts that the ALJ committed legal error by failing to retain a medical expert to determine the onset date of Burridge's severe essential tremor impairment, now diagnosed as Parkinson's disease. JS at 6-8. The Court agrees that the ALJ should have retained a medical expert.

         1. Applicable Law

         SSR 83-20 sets forth guidelines for determining the onset date of disabilities. See SSR 83-20, 1983 WL 31249. The onset date of disability is defined in the ruling as "the first day an individual is disabled as defined in the Act and the regulations." SSR 83-20. With respect to disabilities with difficult-to-discern onset dates, the SSR states:

With slowly progressive impairments, it is sometimes impossible to obtain medical evidence establishing the precise date an impairment became disabling. Determining the proper onset date is particularly difficult, when, for example, the alleged onset and the date last worked are far in the past and adequate medical records are not available. In such cases, it will be necessary to infer the onset date from the medical and other evidence that describe the history and symptomatology of the disease process. . . . In some cases, it may be possible, based on the medical evidence to reasonably infer that the onset of a disabling impairment(s) occurred some time prior to the date of the first recorded medical examination, e.g., the date the claimant stopped working. How long the disease may be determined to have existed at a disabling level of severity depends on an informed judgment of the facts in the particular case. This judgment, however, must have a legitimate medical basis. At the hearing, the administrative law judge (ALJ) should call on the services of a medical advisor when onset must be inferred.

SSR 83-20. "[I]n this context ‘should' [call on the services of a medical advisor] means ‘must.'" Armstrong v. Comm'r of Soc. Sec. Admin., 160 F.3d 587, 590 (9th Cir. 1998). Thus, "[i]n the event that the medical evidence is not definite concerning the onset date and medical inferences need to be made, SSR 83-20 requires the [ALJ] to call upon the services of a medical advisor and to obtain all evidence which is available to make the determination." DeLorme v. Sullivan, 924 F.2d 841, 848 (9th Cir. 1991). 2. The Record There is substantial evidence in the record to suggest that Burridge's tremor was a disabling impairment before the date of the second ALJ hearing in 2014.

         a. Medical Records

         As the ALJ acknowledged in the hearing, doctors had observed Burridge's tremor as early as the 1990s. See AR 350; AR 119 (noting that she has "had ‘shaky hands' for years" in 1995), 115, 117 (noting "upper extremity tremor" in 1995 and 1996). In 2001, medical records recorded her "total body tremors." AR 178. Notes from 2005 mention "whole body tremors." AR 166. Physician notes from 2006 and 2007 remark on Burridge's lip and hand tremors. AR 85, 95, 162. In November 2006, physician notes reflect that "she has had a tremor since she was age 17 years ...


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