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Celia S.V. v. Saul

United States District Court, C.D. California

June 28, 2019

CELIA S. V., [1]Plaintiff,
v.
ANDREW SAUL, Commissioner of Social Security, [2]Defendant.

          MEMORANDUM OPINION AND ORDER REVERSING AND REMANDING DECISION OF THE COMMISSIONER

          ALEXANDER F. MacKINNON, UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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.

         BACKGROUND

         Plaintiff's 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.

         DISPUTED ISSUES

         1. Did the ALJ err in not addressing the opinion of Dr. Bleecker?

         2. Should the ALJ have called a medical expert to testify at the hearing?

         3. Did the ALJ adequately address Plaintiff's subjective symptom allegations?

         4. Did the ALJ err in failing to consider the opinion of chiropractor H. Black?

         STANDARD OF REVIEW

         Under 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 ALJ.”).

         DISCUSSION

         Plaintiff 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. (Id.)

         The 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 ...


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