Sam v. Astrue ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GARY D. SAM,  No. 08-35108
Plaintiff-Appellant,
v.  D.C. No.
CV-07-00085-RRB
MICHAEL J. ASTRUE,
OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, District Judge, Presiding
Argued and Submitted
August 7, 2008—Anchorage, Alaska
Filed December 15, 2008
Before: Dorothy W. Nelson, A. Wallace Tashima and
Raymond C. Fisher, Circuit Judges.
Per Curiam Opinion
16427
16428 SAM v. ASTRUE
COUNSEL
Paul B. Eaglin, Eaglin Law Office, Fairbanks, Alaska, for the
plaintiff-appellant.
Terrye E. Shea, Assistant Regional Counsel, Social Security
Administration, Office of General Counsel, Seattle, Washing-
ton, for the defendant-appellee.
SAM v. ASTRUE 16429
OPINION
PER CURIAM:
Gary D. Sam, who suffers from a degenerative condition
affecting his cervical spine, appeals the district court’s affir-
mance of an administrative law judge’s (“ALJ”) order deny-
ing Sam disability insurance benefits under Title II of the
Social Security Act. The ALJ found Sam ineligible for bene-
fits because he was not disabled on or before the date he was
last insured, March 31, 1997. Sam argues that the ALJ was
required by Social Security Ruling 83-20 (1983) (“SSR 83-
20”) to utilize a medical expert to infer the onset date of
Sam’s current condition in order to determine whether that
condition arose during the time Sam was eligible for disability
insurance benefits. We hold that SSR 83-20 does not require
a medical expert where the ALJ explicitly finds that the
claimant has never been disabled, and therefore affirm the
denial of benefits.
I.
We review de novo a district court’s order upholding the
Commissioner of Social Security’s denial of benefits. See Orn
v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). The ALJ’s
underlying determination “will be disturbed only if it is not
supported by substantial evidence or it is based on legal
error.” Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir.
1989) (internal quotation marks omitted).
II.
Sam filed an application for disability insurance benefits in
2003, claiming he became unable to work in 1993 because
“[his] back, legs and arthritis made it too difficult to work”
and that he was still disabled as of the date of the application.
Specifically, he said arthritis and problems with his neck ver-
16430 SAM v. ASTRUE
tebrae limited his ability to work because he is “in pain all the
time.”
At his July 2006 hearing before an ALJ, Sam submitted
medical records from physicians who examined or treated him
or reviewed source opinions from other doctors. The medical
records he provided that predated March 31, 1997, his date
last insured, reported on ear infections and alcohol withdrawal
symptoms, with no mention of the impairments he has
claimed as disabling. His medical records for the years after
March 1997 reflected treatments for neck pain, headaches,
cervical spine degeneration, depression and knee and shoulder
pain.
Noting there were only “very sparse medical records” for
the period before March 1997 and that the medical evidence
did not otherwise support a severe impairment before that
date, the ALJ found that Sam had no severe impairments on
or before his date last insured and thus was not disabled
within the meaning of the Social Security Act (“the Act”). See
Vincent v. Heckler, 739 F.2d 1393, 1394 (9th Cir. 1984) (per
curiam) (holding only disabilities existing before date last
insured establish entitlement to disability insurance benefits).
The ALJ further found that Sam currently had a “medically
determinable impairment” due to “degenerative changes of
the cervical spine,” but “was not under a ‘disability’ as
defined in the Social Security Act at any time through the
date” of his decision and denied him benefits.
The Appeals Council of the Social Security Administration
denied Sam’s request for review of the denial of Title II bene-
fits, thereby making the ALJ’s decision the Commissioner’s
final decision subject to judicial review. See 20 C.F.R.
§§ 404.981, 422.210 (2007). The district court affirmed the
ALJ’s decision and Sam timely appealed. We have jurisdic-
tion under 28 U.S.C. § 1291.
SAM v. ASTRUE 16431
III.
Relying on SSR 83-20, Sam argues that the ALJ erred by
not consulting a medical expert for assistance in inferring an
onset date of disability. He argues that SSR 83-20 applied
because his alleged onset date (November 1993) and his date
last insured (March 1997) are remote in time, and because the
ALJ found that Sam had established medically determinable
degenerative changes of the cervical spine, a progressive
impairment. This is the only basis on which Sam contests the
ALJ’s decision.
[1] As a general matter, SSR 83-20 sets forth guidelines for
determining the onset date of disability. It directs that the
judgment regarding the onset date of disability “must have a
legitimate medical basis” and that the ALJ “should call on the
services of a medical advisor when onset must be inferred.”
SSR 83-20. We have explained this ruling to mean that “[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 medi-
cal 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] We reject Sam’s contention that SSR 83-20 is applica-
ble to his case. 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. Because the ALJ
found that Sam was not disabled “at any time through the date
of [the] decision” (emphasis added), the question of when he
became disabled did not arise and the procedures prescribed
in SSR 83-20 did not apply. See Scheck v. Barnhart, 357 F.3d
697, 701 (7th Cir. 2004) (“SSR 83-20 addresses the situation
in which an administrative law judge makes a finding that an
individual is disabled as of an application date and the ques-
tion arises as to whether the disability arose at an earlier
time.”).
16432 SAM v. ASTRUE
[3] Sam’s reliance on DeLorme as well as Armstrong v.
Commissioner of the Social Security Administration, 160 F.3d
587 (9th Cir. 1998), and Morgan v. Sullivan, 945 F.2d 1079(9th Cir. 1991) (per curiam), is misplaced because in those
cases there was either an explicit ALJ finding or substantial
evidence that the claimant was disabled at some point after
the date last insured, thus raising a question of onset date.
Here, the ALJ explicitly found that Sam was not disabled at
any time. In light of this finding, which is supported by sub-
stantial evidence, the ALJ was not required by SSR 83-20 to
introduce a medical expert into the process. We therefore
affirm the district court’s decision upholding the ALJ’s denial
of disability insurance benefits.
AFFIRMED.