United States District Court, C.D. California
CELIA S. V., Plaintiff,
ANDREW SAUL, Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER REVERSING AND REMANDING
DECISION OF THE COMMISSIONER
ALEXANDER F. MacKINNON, UNITED STATES MAGISTRATE JUDGE
seeks review of the Commissioner's final decision denying
her application for disability insurance benefits. In
accordance with the Court's case management order, the
parties have filed briefs addressing the merits of the
disputed issues. This matter is now ready for decision.
claim for disability insurance benefits was denied initially
and on reconsideration. A hearing took place before an
Administrative Law Judge (“ALJ”) at which
Plaintiff (represented by counsel) and a vocational expert
(“VE”) testified. The ALJ issued a decision on
June 20, 2017, finding that Plaintiff suffered from the
following severe impairments: bilateral carpal tunnel
syndrome, status post releases; right pronator teres
syndrome; right lateral epicondylitis; biceps tenosynovitis
on the right; status post left knee arthroscopy; bilateral
knee chondromalacia patella; anxiety; mood disorder; and
stiffness in neck and back. (AR 37.) The ALJ determined that
Plaintiff retained the residual functional capacity
(“RFC”) to perform the following:
“occasionally lift and/or carry 50 pounds; frequently
lift and/or carry 25 pounds; stand and/or walk for 6 hours in
an 8-hour workday; sit for 6 hours in an 8hour workday;
frequently climb stairs, stoop, kneel, crouch, and crawl;
occasionally climb ladders, ropes, and scaffolds; frequently
perform fine and gross manipulation bilaterally; limited to
simple tasks of a reasoning level of 3 or less; and no fast
paced work such as rapid assembly line.” (AR 38-39.)
Relying on the testimony of the VE based on the RFC, the ALJ
concluded that Plaintiff was unable to perform her past
relevant work, but there were other jobs that existed in
significant numbers in the national economy that Plaintiff
could have performed, such as automatic machine attendant and
laundry worker. (AR 41-42.) Accordingly, the ALJ determined
that Plaintiff was not disabled at any time from August 8,
2008 (the alleged onset date) through December 31, 2009 (the
date last insured). (AR 42.) The Appeals Council denied
review, thereby rendering the ALJ's decision the final
decision of the Commissioner.
the ALJ err in not addressing the opinion of Dr. Bleecker?
Should the ALJ have called a medical expert to testify at the
the ALJ adequately address Plaintiff's subjective symptom
the ALJ err in failing to consider the opinion of
chiropractor H. Black?
42 U.S.C. § 405(g), the Court reviews the
Commissioner's decision to determine whether the
Commissioner's findings are supported by substantial
evidence and whether the proper legal standards were applied.
See Treichler v. Comm'r of Soc. Sec. Admin., 775
F.3d 1090, 1098 (9th Cir. 2014). Substantial evidence means
“more than a mere scintilla” but less than a
preponderance. See Richardson v. Perales, 402 U.S.
389, 401 (1971); Lingenfelter v. Astrue, 504 F.3d
1028, 1035 (9th Cir. 2007). Substantial evidence is
“such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Richardson, 402 U.S. at 401. Where evidence is
susceptible of more than one rational interpretation, the
Commissioner's decision must be upheld. See Orn v.
Astrue, 495 F.3d 625, 630 (9th Cir. 2007); Batson v.
Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1196 (9th
Cir. 2004) (“When evidence reasonably supports either
confirming or reversing the ALJ's decision, [the court]
may not substitute [its] judgment for that of the
contends that the ALJ erred because her decision does not
mention the opinion of H. Harlan Bleecker, M.D., an
orthopedist who issued a consultative examination report on
June 9, 2016. (AR 812-828.) Dr. Bleecker reported that based
on various orthopedic conditions, Plaintiff could lift and
carry 20 pounds frequently and 20 pounds occasionally; stand
and walk for 15 to 20 minutes at a time with a cane; out of
eight hours, sit for six hours and stand and walk for two
hours with a cane; not walk without a case; and occasionally
reach, handle and finger. (AR 816.) On its signature page,
Dr. Bleecker's report states, “The limitations
above are assumed to be your opinion regarding current
limitations only.” (AR 825.) Dr. Bleecker did not
indicate that the limitations applied in the past.
opinions of treating and examining doctors are critical
evidence, and ALJs are required to provide specific and
legitimate reasons for rejecting them. See Lesterv. Chater, 81 F.3d 821, 830 (9th Cir. 1996);
Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir.
1989). While the Commissioner argues that the ALJ's
decision did not need to address Dr. Bleecker's opinion
because it was prepared more than six years after the date
late insured, this argument is not persuasive. Based on the
present record, it is impossible to know why the ALJ failed
to mention Dr. Bleecker and his opinion. It is quite possible
that this medical opinion was merely overlooked by the ALJ.
Moreover, even if the ALJ had actually considered the
Bleecker report and decided not to discuss it simply because
it came after the date last insured, that would be contrary
to Ninth Circuit law: “We think it is clear that
reports containing observations made after the period for
disability are relevant to assess the claimant's
disability. . . . It is obvious that medical reports are
inevitably rendered retrospectively and should not be
disregarded solely on that basis.” Smith v.
Bowen, 849 F.2d 1222, 1225 (9th Cir. 1988). The Ninth
Circuit in Smith went to state, “medical
evaluations made after expiration of a claimant's insured
status are relevant to an evaluation of the pre-expiration
condition, ” and the Court of Appeals cited with
approval decisions where courts in other circuits found that
medical reports from years after the expiration of insured
status were ...