United States District Court, C.D. California, Western Division
MEMORANDUM ORDER AND OPINION
DOUGLAS F. McCORMICK United States Magistrate Judge
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.
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.
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.
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
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.
STANDARD OF REVIEW
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.
The ALJ Erred in Failing to Call on a Medical Advisor to
Determine Burridge's Physical Impairment Onset
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.
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.
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
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
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.
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 ...