Daniel Clyde Clark v. Carolyn W. Colvin

Filing 18

MEMORANDUM AND OPINION by Magistrate Judge Andrew J. Wistrich: Commissioner's decision is supported by substantial evidence and reflects application of the proper legal standards. Accordingly, the Commissioner's decision is affirmed. (See document for further details.) (jsan)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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EASTERN DIVISION

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DANIEL C. CLARK,

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Plaintiff,
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v.
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NANCY A. BERRYHILL,
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Acting Commissioner of the Social )
Security Administration,
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Defendant.
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_______________________________)

Case No. EDCV 16-1418 AJW
MEMORANDUM OF DECISION

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Plaintiff seeks reversal of the decision of the defendant, the Commissioner of the Social Security

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Administration (the “Commissioner”), denying plaintiff's application for disability insurance benefits. The

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parties have filed a Joint Stipulation (“JS”) setting forth their contentions with respect to each disputed

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issue.

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Background

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The parties are familiar with the procedural history of this case. [See JS 2]. Plaintiff alleged

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disability beginning February 1, 2012. His date last insured for social security disability insurance purposes

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was December 31, 2012. [JS 2]. In a written hearing decision that constitutes the final decision of the

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Commissioner, an administrative law judge (“ALJ”) found plaintiff not disabled on the ground that he

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retained the residual functional capacity (“RFC”) to perform his past relevant work as an appointment clerk

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and as an information clerk. [See JS 2; Administrative Record (“AR”) 11-19].

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Standard of Review

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The Commissioner’s denial of benefits should be disturbed only if it is not supported by substantial

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evidence or is based on legal error. Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015); Thomas

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v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). “Substantial evidence” means “more than a mere scintilla,

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but less than a preponderance.” Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005) (quoting

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Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). “It is such relevant evidence as a reasonable mind

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might accept as adequate to support a conclusion.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)

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(internal quotation marks omitted). The court is required to review the record as a whole and to consider

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evidence detracting from the decision as well as evidence supporting the decision. Robbins v. Social Sec.

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Admin, 466 F.3d 880, 882 (9th Cir. 2006); Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). “Where

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the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's

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decision, the ALJ's conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002)

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(citing Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Ci r. 1999)).

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Discussion

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Retrospective treating source opinion

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Plaintiff contends that the ALJ erroneously rejected the July 8, 2014 opinion of Julie Monroe, D.O.

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[See JS 3-8].

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On July 8, 2014, Dr. Monroe, of Mountains Community Hospital Rural Clinic in Lake Arrowhead,

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California, completed a work-related physical functional assessment form indicating that plaintiff could

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perform less than the full range of sedentary work. Among other things, Dr. Monroe opined that plaintiff

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“needs crutches for ambulation” and would miss more than three days a month of work. [AR 475-477].

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The ALJ found that plaintiff could perform a restricted range of light work, including requiring he

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use of crutches for walking distances of 30 feet or more. [AR 15]. The ALJ did not identify Dr. Monroe

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by name; however, the ALJ cited her functional assessment and gave her opinion “little weight” because

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it was dated after the relevant period and did not assess plaintiff’s capabilities during the relevant period.

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[AR 18].

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the record, for rejecting an uncontroverted treating source opinion. If contradicted by that of another doctor,

The ALJ must provide clear and convincing reasons, supported by substantial evidence in

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a treating or examining source opinion may be rejected for specific and legitimate reasons that are based

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on substantial evidence in the record. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th

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Cir. 2004); Tonapetyan v. Halter, 242 F.3d 1144, 1148-1149 (9th Cir. 2001); Lester v. Chater, 81 F.3d 821,

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830-831 (9th Cir. 1995).

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The ALJ articulated clear and convincing reasons for rejecting Dr. Monroe’s controverted opinion.

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Standing alone, the mere fact that a medical opinion was rendered after expiration of a claimant’s insured

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status does not render that opinion irrelevant. See Lester, 81 F.3d at 832; Smith v. Bowen, 849 F.2d 1222,

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1225 (9th Cir. 1988). In this instance, however, the ALJ was justified in rejecting Dr. Monroe’s opinion

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because she did not address plaintiff’s functional capacity before his date last insured almost 18 months

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earlier. Dr. Monroe gave no indication that she treated or examined plaintiff before or even close in time

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to his date last insured, or that she had reviewed medical records from that period. Treatment notes from

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Mountains Community Hospital establish that Dr. Monroe first treated plaintiff on January 28, 2014, more

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than a year after his insured status expired. [See AR 479-481]. Moreover, where asked to identify the

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“medical findings” supporting her opinion, Dr. Monroe cited only plaintiff’s “chronic knee [and] low back

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pain.” [AR 476]. She did not identify any objective or clinical findings supporting the disabling functional

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limitations she assessed as of July 2014.1 Accordingly, the ALJ did not err in rejecting her opinion when

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assessing plaintiff’s condition prior to December 31, 2012.. See Tidwell v. Apfel, 161 F.3d 599, 602 (9th

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Cir. 1998) (holding that the fact that a treating physician did not examine plaintiff until more than a year

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after expiration of her insured status, coupled with other contradictory evidence, fully supported the ALJ's

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rejection of the physician’s “check-the-box form” stating that the claimant had been “continuously unable

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to work” since before her date last insured); see also Thomas, 278 F.3d at 957 (“The ALJ need not accept

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the opinion of any physician, including a treating physician, if that opinion is brief, conclusory, and

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inadequately supported by clinical findings.”).

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Development of the record

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Plaintiff also contends that the ALJ erred in failing adequately to develop the record. More

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Plaintiff does not challenge the ALJ’s negative credibility finding. See Burrell v. Colvin,
775 F.3 1133, 1141 (9th Cir. 2014) (“An ALJ may reject a treating physician's opinion if it is based
to a large extent on a claimant's self-reports that have been properly discounted as incredible.”)
(quoting Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008)).
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specifically, plaintiff argues that the ALJ “could have contacted Dr. Monroe in order to obtain clarification

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of her opinion regarding plaintiff’s condition during the relevant time period.” [JS 4]. Plaintiff also

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contends that if the ALJ had called a medical expert to review the medical records in this case and testify

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as to plaintiff’s impairments and functional limitations, the ALJ “may have come to a different conclusion

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. . . .” [JS 9].

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The ALJ has a “special duty to fully and fairly develop the record and to assure that the claimant's

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interests are considered,” even where, as here, “the claimant is represented by counsel.” Celaya v. Halter,

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332 F.3d 1177, 1183 (9th Cir. 2003) (quoting Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983)); see

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Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996). A claimant, however, retains the burden of proving

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that he is disabled. Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001). The ALJ's “duty to develop the

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record further is triggered only when there is ambiguous evidence or when the record is inadequate to allow

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for proper evaluation of the evidence.” Mayes, 276 F.3d at 459-460 (rejecting the argument that the ALJ

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breached his duty to develop the record as an impermissible attempt to shift the burden of proving disability

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away from the claimant).

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Plaintiff’s contentions lack merit. Plaintiff has not shown that there was any need for “clarification”

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of Dr. Monroe’s opinion. The treatment notes in the record establish that Dr. Monroe did not examine or

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treat plaintiff until more than a year after plaintiff’s disability insured status expired. She did not render a

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retrospective opinion about his impairments, nor did she identify any findings in support of her July 2014

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functional assessment other than plaintiff’s properly discredited pain complaints. No ambiguity existed that

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required the ALJ to contact her.

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Similarly, plaintiff has not shown that the absence of medical expert testimony rendered the record

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ambiguous or inadequate. The ALJ considered the treatment records, testimonial evidence, and the

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nonexamining state agency physicians’ opinions pertaining to the relevant period. [See AR 13-18]. Plaintiff

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argues that the ALJ “may have come to a different conclusion” if he had elicited medical expert testimony,

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but he has not pointed to any ambiguity or inadequacy in the record that demonstrates error by the ALJ in

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failing to exercise his discretion to call a medical expert. See 20 C.F.R. §§ 404.1527(f)(1)(iii),

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416.927(f)(1)(iii) (stating that ALJs “may also ask for and consider opinions from medical experts on the

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nature and severity of your impairment(s) and on whether your impairment(s) equals the requirements of
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any impairment listed in appendix 1 to this subpart”) (italics added); Foster v. Colvin, 2013 WL 2456457,

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at *4 (E.D. Wash. June 6, 2013) (“Although it is within the ALJ's discretion to develop the record if he

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determines additional evidence (including medical expert testimony) is necessary to resolve a conflict or

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clear up ambiguity in the record, the decision to call a medical expert for additional evidence on the nature

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and severity of impairments is required only when in the opinion of the ALJ or the Appeals Council the

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symptoms, signs and laboratory findings reported in the case record suggest that a judgment of equivalence

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may be reasonable.”) (brackets and ellipsis omitted) (citing Mayes, 276 F.3d at 459-460; SSR 96-6p, 1996

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WL 374180, at *4); Silva v. Colvin, 2015 WL 5675541, at *4-*5 (W.D. Wash. Aug. 31, 2015) (stating that

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“SSR 96–6p requires the ALJ to obtain updated medical expert opinion if, in the opinion of the [ALJ],

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additional medical evidence may change the state agency consultant's finding on equivalence,” but that “the

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decision to seek additional medical expert testimony is left to the discretion of the ALJ,” and holding that

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the record in that case “was not sufficiently ambiguous or incomplete to the point where the ALJ lacked

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sufficient evidence to render a decision”) (internal quotation marks omitted), report and recommendation

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adopted, 2015 WL 5675768 (W.D. Wash. Sept. 25, 2015).

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Conclusion

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For the reasons stated above, the Commissioner's decision is supported by substantial evidence and

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reflects application of the proper legal standards. Accordingly, the Commissioner's decision is affirmed.

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IT IS SO ORDERED.

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March 30, 2017
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ANDREW J. WISTRICH
United States Magistrate Judge

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