(SS) Jose E. Madrid v. Commissioner of Social Security ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOSE EDWARD MADRID, Case No. 1:20-cv-01006-SAB 12 Plaintiff, ORDER DENYING PLAINTIFF’S SOCIAL SECURITY APPEAL AND ENTERING 13 v. JUDGMENT IN FAVOR OF DEFENDANT COMMISSIONER OF SOCIAL SECURITY 14 COMMISSIONER OF SOCIAL SECURITY, (ECF Nos. 19, 20, 21) 15 Defendant. 16 17 I. 18 INTRODUCTION 19 Jose Edward Madrid (“Plaintiff” or “Madrid”) seeks judicial review of a final decision of 20 the Commissioner of Social Security (“Commissioner” or “Defendant”) denying his application 21 for disability benefits pursuant to the Social Security Act. The matter is currently before the 22 Court on the parties’ briefs, which were submitted without oral argument, to Magistrate Judge 23 Stanley A. Boone.1 24 Plaintiff suffers from diabetes mellitus with neuropathy; hypertension; insomnia; mild to 25 moderate facet degenerative changes; obesity; and status-post stroke. For the reasons set forth 26 below, Plaintiff’s Social Security appeal shall be denied. 27 1 The parties have consented to the jurisdiction of a United States Magistrate Judge and this action has been 1 II. 2 BACKGROUND 3 A. Procedural History 4 On February 22, 2017, and April 20, 2017, Plaintiff filed Title II and XVI applications 5 for a period of disability, disability insurance benefits, and supplemental security income, 6 alleging a period of disability beginning on August 31, 2013. (AR 275-278, 279-287.)2 7 Plaintiff’s claim was initially denied on June 2, 2017, and denied upon reconsideration on July 8 18, 2017. (AR 131-135, 139-145.) 9 On August 2, 2017, Plaintiff requested a hearing before an administrative law judge. 10 (AR 146.) Plaintiff appeared before Administrative Law Judge Major Williams Jr. (the “ALJ”), 11 for administrative hearings on April 2, 2019, and August 8, 2019. (AR 56-67, 68-78.) On 12 August 16, 2019, the ALJ issued a partially favorable decision with an established onset date of 13 November 15, 2018. (AR 37-55.) On May 26, 2020, the Appeals Council denied Plaintiff’s 14 request for review. (AR 1-6.) 15 Plaintiff filed this action on July 21, 2020, and seeks judicial review of the denial of the 16 application for disability benefits. (ECF No. 1.) On May 10, 2021, Plaintiff filed an opening 17 brief. (ECF No. 19.) On June 9, 2021, Defendant filed a brief in opposition. (ECF No. 20.) On 18 June 22, 2021, Plaintiff filed a reply brief. (ECF No. 21.) 19 B. Hearing Testimony 20 Two hearings were conducted in this matter before the same ALJ, one on April 2, 2019, 21 and one on August 8, 2019. 22 1. The April 2, 2019 Hearing 23 Plaintiff testified at the April 2, 2019 hearing with the assistance of counsel. (AR 56-67.) 24 On the date of the hearing, Plaintiff was 63 years old. (AR 58.) Plaintiff alleged an onset date of 25 2 Plaintiff filed a prior application that was denied on April 18, 2016. (AR 104.) As discussed herein, the ALJ found no new and material evidence that would justify the reopening of the prior application. (AR 41.) Plaintiff 26 submits this rationale is not legally sufficient as a determination can be reopened within 12 months of the date of the notice of the initial determination for any reason, 20 C.F.R. §§ 404.988(a) and 416.1488(a), and argues the ALJ 27 erred by failing to reopen the prior application. (Br. 3 n.1.) Plaintiff’s only discussion of this argument is contained in one footnote. (Id.) The Court addresses this argument herein. At the August 8, 2019 hearing, Plaintiff, through 1 August 31, 2013, a year that he earned $78,633, and had a date last insured of December 31, 2 2018. (Id.) Plaintiff’s counsel informed the ALJ that Plaintiff was suffering from a swollen 3 tongue the day of the hearing and that it may be difficult for the ALJ to understand him. (AR 4 59.) 5 The ALJ first elicited testimony from the Vocational Expert Stacia Schonbrun (the 6 “VE”). (Id.) Plaintiff confirmed that he worked as an agricultural field supervisor, and also 7 performed field labor. (AR 59-60.) The VE first considered classifying the work under the DOT 8 title of harvest worker, agricultural worker, DOT 404.687-014, heavy with an SVP of 1. (AR 9 60.) However, Plaintiff would supervise a crew of up to 50 people. (Id.) The ALJ, counsel, and 10 the VE then agreed the work should be classified as field crop supervisor, or supervisor picking 11 crew, DOT 404.131-010 or 409.131-010, medium with an SVP of 7. (AR 60-61.) 12 The ALJ asked Plaintiff about why work was somewhat abruptly stopped in 2013, and 13 whether there was an accident at work. (AR 62.) Plaintiff responded that he did not have the 14 mindset of working too much. (Id.) 15 The ALJ noted there did not appear to be medical records supporting disability before the 16 first consultative exam in 2015, which showed a range of medium work with some postural 17 limitations. (AR 63.) The ALJ noted Dr. Gabriel’s medical source statement from February 22, 18 2019, and then another at 13F,3 and the ALJ began stating such record showed a limitation to 19 medium work. Counsel interjected and clarified that 13F would be limited to light work, lifting 20 35 to 40 pounds, and 25 pounds frequently. The ALJ noted that a 25 pound lifting restriction is 21 in the range of medium work, so somewhere between medium and light, but stated to the extent 22 he can lift 25 pounds frequently, it would take the assessment out of the light category. The ALJ 23 asked what evidence there was to support a light RFC. Counsel offered the medical source 24 statement from Dr. Gabriel, Ex. 18F, who had seen Plaintiff since September 1, 2015. (AR 63- 25 64.) Counsel submitted that Dr. Gabriel’s opinion should be given great weight, with a less than 26 a sedentary RFC. (AR 64.) 27 3 Ex. 13F refers to an internal medicine consultative examination dated May 11, 2017, from Dr. Sachdeva. (AR 1 The ALJ responded that he did not think he could take the opinion all the way back to the 2 alleged onset date, as Dr. Gabriel only started seeing Plaintiff in 2015. (AR 64.) Counsel 3 responded that he would be agreeable to amend the onset date to when Dr. Gabriel first saw 4 Plaintiff in September of 2015; and also submitted that if a person could only stand and walk for 5 six hours of an eight hour workday, such person couldn’t perform the job that Plaintiff 6 performed, and such limitation would eliminate medium work as most medium work would have 7 to be standing for eight hours of the workday. (AR 64.) 8 The ALJ presented the VE with a hypothetical person with the Plaintiff’s vocational 9 history who could perform a range of medium work six hours in an eight hour workday, stand 10 and walk six hours in an eight hour workday, sit six hours in an eight hour workday, with lifting 11 limited to 35 to 45 pounds occasionally and 25 pounds frequently, carrying limited to 25 pounds 12 occasionally and 15 pounds frequently, and who is capable of performing frequent climbing, 13 balancing, stooping, kneeling, crawling, and crouching. (AR 65.) The VE testified that such 14 person could perform past work, however hesitated given the carrying limitations were close to 15 the limitations given medium exertion is 25 to 50 pounds. (Id.) 16 The ALJ then found it necessary to continue the hearing due to the Plaintiff’s swollen 17 tongue, and also decided to hold the next hearing with an orthopedic doctor present to give 18 testimony. (AR 66.) 19 2. The August 8, 2019 Hearing 20 Plaintiff testified at the August 8, 2019 hearing with the assistance of counsel. (AR 68- 21 78.) Plaintiff was again 63 years old on the date of the hearing. (AR 70.) The ALJ noted 22 Plaintiff was alleging an onset date of August 31, 2013. (Id.) 23 In an opening statement, counsel noted Ex. 23F demonstrated Plaintiff had a stroke the 24 date of the last hearing, related to the swollen tongue. (AR 71-72.) On that date, Plaintiff went 25 to the hospital, was diagnosed with an acute stroke, and an occluded left vertebral artery 26 approximal intercranial left internal carotid artery. (AR 72.) Counsel noted an angiogram dated 27 June 15, 2019, showed minimal constitution of the left internal carotid artery at the cavernous 1 cerebral arteries and minimal cerebral arteries bilaterally. (AR 72.) Counsel stated that 2 unfortunately, the stroke was after the date last insured. 3 Counsel also highlighted Ex. 18F, the medical source statement from Dr. Gabriel dated 4 February 22, 2019 (AR 559-562), found essentially that Plaintiff had uncontrolled diabetes, 5 hypertension, chronic low back pain, neuropathy, and opined Plaintiff to be dysfunctional, able 6 to lift five pounds or less, with being off task 30% of the day, and missing four days of work in a 7 month. (AR 72-73.) 8 The medical expert Dr. Thompson (the “ME”), an orthopedic surgeon, then testified. 9 (AR 73.) The ME testified there was evidence in the record of back pain with trigger points 10 treated with trigger point releases, with a normal gait and neurological exam in May of 2015 (Ex. 11 1F at 1, AR 416). The ME noted a December 16, 2015 record, with paraspinal complaint of pain 12 with no lower extremity radiation of pain, slightly reduced lumbar spine range of motion, normal 13 gait and heel/toe walking, normal strength and reflexes with a stocking-type sensory decrease in 14 both lower extremities, but no loss of equilibrium stated, and negative straight leg raising (5F at 15 1, AR 439). (AR 73-74.) The ME acknowledged a later exam in May of 2017 noted back pain 16 when standing upright, normal lumbar spine range of motion, normal pulses, reflexes, and 17 strength in the extremities, negative straight leg raising, and a decreased sensation in both feet. 18 (AR 74.) The ME noted later imaging showed mild levoscoliosis with mild disc space narrowing 19 at L3-4 through L5-S1, with mild to moderate percent changes in 4-5 and 5S-1, and mild 20 retrolisthesis at 3-5 (Ex. 19F at 1). The ME noted a lumbar spine x-ray was done in February of 21 2019. The ME stated that unfortunately no advanced imaging of the spine is seen, and no loss of 22 balance is seen in the evidence submitted. 23 The ME opined the medical evidence far outweighed the orthopedic muscular skeletal 24 evidence with hypertension, obesity, and insulin dependent but total uncontrolled diabetes 25 mellitus. (AR 74.) The ME noted that in October of 2018, the hemoglobin A1C was at a 14, a 26 potentially lethal level. (Id.) The ME noted insomnia, benign prostatic hypertrophy, a cataract 27 surgery, and poor compliance with medication. (Id.) The ME noted the recent stroke, and stated 1 more than the objective orthopedic issues. (AR 74-75.) The ME stated that strictly based on the 2 orthopedic issues, the ME could give a somewhat limited RFC that does not take into account the 3 effects of out-of-control diabetes or mental issues. (AR 75.) The ME stated there could be 4 balance issues, but balance issues were not mentioned because of the evidence of loss of feeling 5 in the feet which the ME stated is extremely common in uncontrolled diabetes as an ultimate 6 polyneuropathy. 7 The ME stated the overall evaluations in the record may be more appropriate, stating 8 such evaluations are based more on the overall medical issues than the specific objective 9 muscular skeletal evidence. The ALJ asked whether Dr. Gabriel’s opinion captured Plaintiff’s 10 physical limitations, and the ME stated he thought it did, and stated it did include the medical 11 issues cited in the record and the objective orthopedic evidence seen, which the ME again noted 12 was not very helpful in the absence of advanced imaging. (AR 75-76.) The ME stated there 13 were issues and factors outside of his field of expertise, such as difficulty hearing, and given 14 memory issues could be associated with the diabetes, found he could not disagree with Dr. 15 Gabriel’s opinion. (AR 76.) 16 The ALJ asked Plaintiff when he began seeing Dr. Gabriel, and Plaintiff answered about 17 four years before the hearing. The ALJ noted that would take the treatment back to 2015, stating 18 that “seem[ed] reasonable.” (Id.) The ALJ noted the internal medicine consultative exam in 19 2017 had Plaintiff at light, and asked counsel if he had a proposal for an onset date. Counsel 20 responded with September 1, 2015, and answered the basis for such date was the fact he had 21 been seeing Dr. Gabriel for many years; that Plaintiff stopped working because of his 22 uncontrolled diabetes and hypertension; that those conditions and the records reflect non- 23 controlled diabetes and hypertension; and the September 1, 2015 date was 17 months prior to the 24 application date, the earliest date Plaintiff could be get paid. The ALJ state he found such 25 proffer to be reasonable, and that he would adopt it. (AR 77.) 26 C. The ALJ’s Findings of Fact and Conclusions of Law 27 The ALJ made the following findings of fact and conclusions of law: 1 December 31, 2018. 2 • Plaintiff has not engaged in substantial gainful activity since the amended alleged onset 3 date of September 1, 2015. 4 • Since the amended alleged onset date of disability, September 1, 2015, Plaintiff has had 5 the following severe impairments: diabetes mellitus with neuropathy and mild to 6 moderate facet degenerative changes. 7 • Beginning on the established onset date of disability, November 15, 2018, Plaintiff has 8 had the following severe impairment: diabetes mellitus with neuropathy; hypertension; 9 insomnia; mild to moderate facet degenerative changes; obesity; and status-post stroke. 10 • Prior to November 15, 2018, the date Plaintiff became disabled, Plaintiff had the residual 11 functional capacity to perform medium work as defined in 20 CFR Part 404.1567(c) and 12 416.967(c) except: stand and walk six hours in an eight-hour workday; sit six hours in an 13 eight-hour workday; lifting limited to 35 to 40 pounds occasionally and 25 pounds 14 frequently; carrying limited to 25 pounds occasionally and 15 pounds frequently; he is 15 capable of performing frequent climbing, balancing, stooping, kneeling, crawling, and 16 crouching. 17 • Since September 1, 2015, Plaintiff has not had an impairment or combination of 18 impairments that meets or medically equals the severity of one of the listed impairments 19 in 20 CFR Part 404, Subpart P, Appendix 1. 20 • Beginning on November 15, 2018, the date Plaintiff became disabled, the Plaintiff had 21 the residual functional capacity to perform light work as defined in 20 CFR Part 22 404.1567(c) and 416.967(c) except: he is capable of performing occasional climbing, 23 balancing, stooping, kneeling, crawling, and crouching. 24 • Prior to November 15, 2018, Plaintiff was capable of performing past relevant work as a 25 field crop supervisor (D.O.T. 404.131-010, medium, SVP 7). This work did not require 26 the performance of work-related activities precluded by Plaintiff’s residual functional 27 capacity. 1 Plaintiff from being able to perform past relevant work. 2 • Plaintiff was an individual closely approaching retirement age on November 15, 2018, 3 the established disability onset date. 4 • Plaintiff has at least a high school education and is able to communicate in English. 5 • Plaintiff does not have work skills that are transferable to other occupations within the 6 residual functional capacity defined above. 7 • Since November 15, 2018, considering the Plaintiff’s age, education, work experience, 8 and residual functional capacity, there are no jobs that exist in significant numbers in the 9 national economy that Plaintiff can perform. 10 • Plaintiff was not disabled prior to November 15, 2018, but became disabled on that date 11 and has continued to be disabled through the date of the decision. Plaintiff’s disability is 12 expected to last twelve months past the onset date. 13 (AR 41-48.) 14 III. 15 LEGAL STANDARD 16 To qualify for disability insurance benefits under the Social Security Act, the claimant 17 must show that she is unable “to engage in any substantial gainful activity by reason of any 18 medically determinable physical or mental impairment which can be expected to result in death 19 or which has lasted or can be expected to last for a continuous period of not less than 12 20 months.” 42 U.S.C. § 423(d)(1)(A). The Social Security Regulations set out a five-step 21 sequential evaluation process to be used in determining if a claimant is disabled. 20 C.F.R. § 22 404.1520;4 Batson v. Commissioner of Social Security Administration, 359 F.3d 1190, 1194 (9th 23 Cir. 2004). The five steps in the sequential evaluation in assessing whether the claimant is 24 disabled are: 25 Step one: Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. 26 4 The cases generally cited herein reference the regulations which apply to disability insurance benefits, 20 C.F.R. § 27 404.1501 et seq., and Plaintiff is also seeking supplemental security income, 20 C.F.R. § 416.901 et seq. The regulations are generally the same for both types of benefits. Further references are to the disability insurance 1 Step two: Is the claimant’s alleged impairment sufficiently severe to limit his or 2 her ability to work? If so, proceed to step three. If not, the claimant is not disabled. 3 Step three: Does the claimant’s impairment, or combination of impairments, meet 4 or equal an impairment listed in 20 C.F.R., pt. 404, subpt. P, app. 1? If so, the claimant is disabled. If not, proceed to step four. 5 Step four: Does the claimant possess the residual functional capacity (“RFC”) to 6 perform his or her past relevant work? If so, the claimant is not disabled. If not, proceed to step five. 7 Step five: Does the claimant’s RFC, when considered with the claimant’s age, 8 education, and work experience, allow him or her to adjust to other work that exists in significant numbers in the national economy? If so, the claimant is not 9 disabled. If not, the claimant is disabled. 10 Stout v. Commissioner, Social Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006). 11 Congress has provided that an individual may obtain judicial review of any final decision 12 of the Commissioner of Social Security regarding entitlement to benefits. 42 U.S.C. § 405(g). 13 In reviewing findings of fact in respect to the denial of benefits, this court “reviews the 14 Commissioner’s final decision for substantial evidence, and the Commissioner’s decision will be 15 disturbed only if it is not supported by substantial evidence or is based on legal error.” Hill v. 16 Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). “Substantial evidence” means more than a 17 scintilla, but less than a preponderance. Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) 18 (internal quotations and citations omitted). “Substantial evidence is relevant evidence which, 19 considering the record as a whole, a reasonable person might accept as adequate to support a 20 conclusion.” Thomas v. Barnhart, 278 F.3d 947, 955 (9th Cir. 2002) (quoting Flaten v. Sec’y of 21 Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995)). 22 “[A] reviewing court must consider the entire record as a whole and may not affirm 23 simply by isolating a specific quantum of supporting evidence.” Hill, 698 F.3d at 1159 (quoting 24 Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 2006). However, it is not 25 this Court’s function to second guess the ALJ’s conclusions and substitute the court’s judgment 26 for the ALJ’s. See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (“Where evidence is 27 susceptible to more than one rational interpretation, it is the ALJ’s conclusion that must be upheld.”). 1 IV. 2 DISCUSSION AND ANALYSIS 3 A. Plaintiff’s Arguments on Appeal 4 Plaintiff contends the ALJ failed to provide Plaintiff with a full and fair hearing, and that 5 the ALJ’s determination that Plaintiff was not disabled prior to November 15, 2018, is not 6 supported by substantial evidence. (Pl.’s Opening Br. (“Br.”) 6-11, ECF No. 19.) Specifically, 7 Plaintiff submits that the ALJ: (1) failed to properly evaluate the medical evidence in assessing 8 Plaintiff’s Residual Functional Capacity (“RFC”) for the period prior to November 15, 2018, by 9 failing to provide an adequate explanation for how he found Plaintiff disabled on such date but 10 not prior to such date, 20 C.F.R. §§ 404.1520(e) and 416.920(e); and (2) failed to articulate 11 specific and legitimate reasons for rejecting Dr. Gabriel’s opinions for the period prior to 12 November 15, 2018, Lester v. Chater, 81 F.3d 821, 833 (9th Cir. 1995) (“Dr. Kho’s 1987 13 statements were made before Lester underwent a comprehensive psychological assessment— 14 and, therefore, before Dr. Kho was aware of the full extent of Lester’s psychiatric impairment. 15 Because his later opinion was based on a more complete evaluation of the combined impact 16 of all of Lester’s impairments, that opinion should be accorded greater weight.”). (Br. 7-8.) 17 Plaintiff otherwise stipulates that the ALJ fairly and accurately summarized the medical evidence 18 of record except for where specifically stated within the briefing. (Br. 5.) 19 The Court summarized the hearing testimony above, including the fact the April 2, 2019 20 hearing was continued due to Plaintiff’s swollen tongue. Plaintiff acknowledges, and the Court 21 notes the ALJ’s hypothetical presented to the VE at the first hearing matched the ALJ’s RFC 22 assessment for the period prior to November 15, 2018, and the VE testified such person could 23 perform past work. (Br. 6; AR 65-66.) 24 Plaintiff highlights the ME Dr. Thompson’s testimony at the August 8, 2019 hearing that 25 the non-orthopedic impairments would affect Plaintiff’s ability to function and work “far more 26 than the objective orthopedic issues” (Br. 7; AR 74-75.); and that Dr. Gabriel’s medical source 27 statement (Ex. 18F, AR 559-562), captured Plaintiff’s physical limitations and that he could not 1 At the August 8, 2019 hearing, the ALJ noted that Plaintiff had been of advanced age as 2 of 2013. The ALJ asked Plaintiff how long he had been treating with Dr. Gabriel, and Plaintiff 3 answered about 4 years. The ALJ stated 2015 was reasonable, and noted the 2017 internal 4 medical medicine consultative exam had assessed Plaintiff at light. (Br. 7; AR 76, 475-480.) 5 As summarized above, the ALJ asked counsel for a proposed onset date, counsel 6 proposed September 1, 2015, and the ALJ found such date to be reasonable and expressly 7 adopted it. (AR 76-77.) Plaintiff argues that he and his hearing counsel reasonably relied on the 8 ALJ’s adoption and did not ask further questions of the ME, and the ALJ then dismissed the ME, 9 and closed the hearing without taking any additional testimony from Plaintiff or the VE. (AR 10 77.) The ALJ found Dr. Gabriel’s opinion to be supported by the ME’s testimony and consistent 11 with no more than light work, but only beginning on November 15, 2018 (AR 46), and Plaintiff 12 highlights the written opinion makes no reference regarding the discussion with counsel at the 13 hearing about the adoption of the onset date. (Br. 7.) 14 Plaintiff argues that Dr. Gabriel’s opinions are consistent with the medical evidence as of 15 September 1, 2015. While the ALJ found that Plaintiff’s hypertension, insomnia, and obesity 16 were severe only as of November 15, 2018, Plaintiff submits these severe impairments were 17 well-documented as of September 1, 2015 (AR 455-462, 481-485, 488, 490-494). 18 Plaintiff emphasizes his diabetes is uncontrolled; that between September 1, 2015 and 19 July 19, 2016, Plaintiff’s blood sugar fluctuated from a low of 150 to a high of 410 (AR 455-462, 20 492-494); on April 15, 2016, Plaintiff’s hemoglobin A1c was noted at 10.4 (AR 455); on 21 October 20, 2016, Plaintiff’s A1c was noted at 11.7 (AR 490); on April 25, 2017, Dr. Gabriel 22 noted an A1c of 14 (AR 483); and the ME Dr. Thompson testified that a hemoglobin A1c of 7 is 23 what is to be expected, and that a 14 is potentially lethal (AR 74). (Br. 8.) 24 Plaintiff argues he and his counsel clearly relied on the ALJ’s statements made at the 25 August 8, 2019 hearing, and a reading of the statements leads to only one conclusion: that the 26 ALJ would issue a fully favorable decision as of September 1, 2015, the amended onset date. 27 (Br. 8-9.) Plaintiff submits that if the ALJ had expressed concern about the amended onset date, 1 regulations allow for questioning of any witnesses, and Plaintiff was not afforded this 2 opportunity, Richardson v. Perales, 402 U.S. 389, 400–01 (1971) (“There emerges an emphasis 3 upon the informal rather than the formal . . . these hearings, should be understandable to the 4 layman claimant, should not necessarily be stiff and comfortable only for the trained attorney, 5 and should be liberal and not strict in tone and operation.”). Plaintiff emphasizes that the 6 adjudicate process and procedures remain “unusually protective” of claimants, Smith v. 7 Berryhill, 139 S. Ct. 1765, 1776 (2019). (Br. 9.) 8 Plaintiff submits that he was denied due process because of his reliance on the ALJ’s 9 statements, and that in light of the ME testimony and the ALJ’s statement that the amended onset 10 date was reasonable and adopted, the decision should be reversed and the Court should find 11 Plaintiff to have been disabled as of September 1, 2015. (Br. 9.) Alternatively, Plaintiff requests 12 remand for further proceedings to allow for additional testimony from the ME Dr. Thompson. 13 (Br. 9.) 14 B. Summary of the Relevant Portions of the ALJ’s Decision 15 In a heading, the ALJ found that since the “amended alleged onset date of disability, 16 September 1, 2015,” Plaintiff suffered from the following severe impairments: diabetes mellitus 17 with neuropathy and mild to moderate facet degenerative changes. (AR 44.) The opinion then 18 proceeds to the next heading, without a body of analysis under the previous heading. The next 19 heading states that beginning on the “established onset date of disability, November 15, 2018,” 20 Plaintiff suffered from the following severe impairments: diabetes mellitus with neuropathy, 21 hypertension, insomnia, mild to moderate facet degenerative changes, obesity, and status-post 22 stroke. (AR 44.) There, the ALJ found that prior to the established onset date (“EOD”)5 of 23 November 15, 2018, Plaintiff had the RFC to perform medium work with the following specific 24 restrictions: stand and walk six hours in an eight-hour workday; sit six hours in an eight-hour 25 workday; lifting limited 35 to 40 pounds occasionally and 25 pounds frequently; carrying limited 26 to 25 pounds occasionally and 15 pounds frequently; and capable of performing frequent 27 1 climbing, balancing, stooping, kneeling, crawling, and crouching. (AR 44.) 2 In making the RFC determination, the ALJ acknowledged that from May 23, 2016, to 3 July 19, 2016, Plaintiff saw Dr. Gabriel for diabetes, hypertension, and back pain. (AR 44.) The 4 ALJ noted the physical examinations were normal on these dates (14F at 12-14), and that from 5 September 22, 2016 to May 16, 2017, Plaintiff reported back pain on November 3, 2016, and 6 August 24, 2017 (14F at 2-11; 17F at 21). 7 The ALJ stated that on May 11, 2017, consultative examiner Dr. Sachdeva found Plaintiff 8 was capable of medium after a physical examination revealed full strength and range of motion 9 in all joints and muscle groups, but decreased sensation on the soles of the feet; walked with 10 normal gait; grip strength was 75 pounds in the right hand and 65 pounds in the left (13F at 1-5). 11 (AR 44.)6 The ALJ adopted Dr. Sachdeva’s RFC statement finding it consistent with the 12 medical evidence of record, noting Plaintiff again reported back pain on June 16, 2017, and that 13 a physical exam was normal on such date (14F at 11). The ALJ stated these limitations were 14 consistent with the ME’s testimony at the hearing concerning minimal orthopedic findings. (AR 15 44.) 16 The ALJ assigned the greatest weight to the opinion of Dr. Sachdeva because it was 17 supported by Dr. Sachdeva’s observation, and was consistent with the medical evidence of 18 record, which the ALJ found only showed sporadic reports of lower back pain (13F at 1-5). (AR 19 44.) The ALJ assigned “some weight” to the medium RFC statements of the State agency 20 medical consultants finding them to be consistent with the medical evidence of record, including 21 Dr. Sachdeva’s observations and opinions. (AR 44.) The ALJ assigned little weight to the “less 22 than sedentary” opinions of Dr. Gabriel before the EOD, finding them to be inconsistent with 23 Plaintiff’s normal physical examinations, Plaintiff’s sporadic reports of back pain, and the ME 24 Dr. Thompson’s hearing testimony. (AR 45.) 25 The ALJ found Plaintiff’s statements concerning the intensity, persistence, and limiting 26 6 The ALJ stated that Dr. Sachdeva “opined claimant was limited to less than medium work.” (AR 44.) 27 In briefing, Plaintiff states that the ALJ stated the 2017 consultative exam assessed Plaintiff at light. (Br. 7; AR 76, 1 effects of symptoms were not fully supported prior to November 15, 2018, and that beginning on 2 November 15, 2018, the EOD that Plaintiff became disabled, Plaintiff had the RFC to perform 3 light work except: he was capable of performing occasional climbing, balancing, stooping, 4 kneeling, crawling, and crouching. (AR 45.) The ALJ stated Plaintiff’s allegations were 5 inconsistent with the medical evidence of record prior to the EOD. (AR 46.) Noting the 6 allegations of disability due to diabetes, hypertension, and back pain, the ALJ then summarized 7 that the ME testified Plaintiff’s: (1) overall medical longitudinal evidence outweighed the 8 orthopedic elements of the case; (2) diabetes was totally uncontrolled; (3) hemoglobin A1c was 9 at 14 in October 2018, a lethal level; and (4) limitations extended to his feet where the medical 10 evidence showed loss of sensation in his bilateral feet. (AR 46.) 11 The ALJ acknowledged that Plaintiff submitted treatment records with Dr. Gabriel with 12 physical examinations that showed a diagnosis of diabetic noncompliance, with hemoglobin A1c 13 as high as 14, hypertension, and insomnia. (AR 46.) The ALJ noted Plaintiff alleged significant 14 limitations from headaches and dizziness, and although Dr. Gabriel’s reviews of systems did not 15 appear to record the complaint, the ALJ found it reasonable to assume this was an oversight in 16 view of the high A1c levels. 17 As for Dr. Gabriel’s February 22, 2019 treating source statement limiting Plaintiff to less 18 than sedentary work, the ALJ acknowledged the ME supported this opinion based on his review 19 of the longitudinal record. The ALJ concluded that the combination of impairments found in Dr. 20 Gabriel’s assessment along with the ME’s testimony, were consistent with no more than light 21 work. (AR 46.) 22 The ALJ found that beginning on November 15, 2018, Plaintiff’s allegations regarding 23 his symptoms and limitations were consistent with the evidence; and that moreover, in April of 24 2019, the Plaintiff had the stroke that would be expected to reduce his RFC to light work. (AR 25 46.) The ALJ stated that Plaintiff did not seek help for this condition until June of 2019, when 26 MRI studies showed evidence of scattered late acute to subacute infarcts (20F at 1). The ALJ 27 cited the fact Dr. Osborne noted Plaintiff did not go to a doctor after a fall that affected his 1 Finally, the ALJ gave significant weight to the opinion of the ME Dr. Thompson, as well 2 as Dr. Gabriel’s, but only after the EOD. The ALJ concluded the Plaintiff’s impairments could 3 cause a reduction in the RFC because the evidence of record demonstrates the uncontrolled A1c 4 in October of 2018 at 14; the peripheral neuropathy in his feet secondary to diabetes; 5 hypertension, insomnia, back pain; and the stroke. (AR 46-47.) The ALJ then assigned little 6 weight to all other opinion evidence after the EOD because the stroke was not reflected in their 7 assessments. (AR 47.) 8 C. The ALJ Properly Assessed and Weighed Dr. Gabriel’s Opinion Before and After the Established Onset Date 9 10 Plaintiff argues the ALJ failed to articulate specific and legitimate reasons for rejecting 11 Dr. Gabriel’s opinions for the period prior to November 15, 2018. (Br. 7-8.) 12 The weight to be given to medical opinions depends upon whether the opinion is 13 proffered by a treating, examining, or non-examining professional. See Lester v. Chater, 81 F.3d 14 821, 830-831 (9th Cir. 1995). In general a treating physician's opinion is entitled to greater 15 weight than that of a nontreating physician because “he is employed to cure and has a greater 16 opportunity to know and observe the patient as an individual.” Andrews v. Shalala, 53 F.3d 17 1035, 1040-41 (9th Cir. 1995) (citations omitted). If a treating physician’s opinion is 18 contradicted by another doctor, it may be rejected only for “specific and legitimate reasons” 19 supported by substantial evidence in the record. Ryan v. Commissioner of Social Sec., 528 F.3d 20 1194, 1198 (9th Cir. 2008) (quoting Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005)). 21 Where the treating physician’s opinion is contradicted by the opinion of an examining 22 physician who based the opinion upon independent clinical findings that differ from those of the 23 treating physician, the nontreating source itself may be substantial evidence, and the ALJ is to 24 resolve the conflict. Andrews, 53 F.3d at 1041. However, if the nontreating physician’s opinion 25 is based upon clinical findings considered by the treating physician, the ALJ must give specific 26 and legitimate reasons for rejecting the treating physician’s opinion that are based on substantial 27 evidence in the record. Id. 1 specific, legitimate reason for rejecting a treating or examining physician's opinion, however, “it 2 may constitute substantial evidence when it is consistent with other independent evidence in the 3 record.” Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). The ALJ need not accept 4 the opinion of any physician that is brief, conclusory, and unsupported by clinical findings. 5 Thomas, 278 F.3d at 957. 6 The Court concludes the ALJ properly provided specific and legitimate reasons for 7 finding Dr. Gabriel’s opinion was entitled to little weight for the period before November 15, 8 2018, and the determination is supported by substantial evidence. The ALJ’s ultimate disability 9 determination as to the Plaintiff’s period of disability and the RFC determination before and after 10 the EOD is also supported by substantial evidence and free from remandable legal error. 11 As summarized above, the ALJ utilized the opinions of three other doctors that found 12 Plaintiff was capable of a range of medium work. (AR 44.) The ALJ assigned the greatest 13 weight to the opinion of Dr. Sachdeva, the consultative examiner. The ALJ specifically noted 14 that this opinion found Plaintiff was capable of medium work after a physical examination 15 revealed: full strength and range of motion in all joints and muscle groups, but decreased 16 sensation on the soles of the feet; that Plaintiff walked with normal gait; and his grip strength 17 was 75 pounds in the right hand and 65 pounds in the left. (AR 44.) The ALJ adopted this RFC 18 finding it consistent with the record, and consistent with the ME’s testimony concerning minimal 19 orthopedic findings. (AR 44.) The ALJ also assigned some weight to the medium RFC opinions 20 of the medical consultants finding them consistent with the record and with Dr. Sachdeva’s 21 opinion. 22 The Court notes that the evidence the state agency consultants considered included Dr. 23 Gabriel’s treatment notes and Dr. Sachdeva’s consultative exam. (AR 80-87, 124-28.) The 24 Court has reviewed these opinions, and Dr. Sachdeva’s, and finds them to be reasonably 25 supported and consistent with the medical record as a whole, and giving deference to the ALJ in 26 resolving conflicts, the Court finds the ALJ’s determinations regarding weight to Dr. Gabriel’s 27 opinion before the EOD to be based on specific and legitimate reasons supported by substantial 1 is given deference, the ALJ may reject the opinion of a treating physician in favor of a 2 conflicting opinion of an examining physician if the ALJ makes findings setting forth specific, 3 legitimate reasons for doing so that are based on substantial evidence in the record [and] [t]he 4 opinions of non-treating or non-examining physicians may also serve as substantial evidence 5 when the opinions are consistent with independent clinical findings or other evidence in the 6 record.”) (internal quotations and citations omitted); Tonapetyan, 242 F.3d at 1149 (examining 7 physician’s “opinion alone constitutes substantial evidence, because it rests on his own 8 independent examination” of the claimant); Andrews, 53 F.3d at 1041; see also 20 C.F.R. § 9 404.1513a(b)(1) (State agency consultants “are highly qualified and experts in Social Security 10 disability evaluation”), 20 C.F.R. § 404.1527(c)(6) (other factors, such as a doctor’s degree of 11 understanding of SSA disability programs and their evidentiary requirements are relevant in 12 assessing weight to give to a medical opinion); Bray v. Astrue, 554 F.3d 1219, 1221, 1227 (9th 13 Cir. 2009) (ALJ properly relied “in large part on the DDS physician’s assessment” in assessing 14 the RFC). 15 In addition to giving great and some weight to the CE and State non-examining opinions, 16 the ALJ assigned little weight to the less than sedentary opinions of Dr. Gabriel before the EOD 17 finding them to be inconsistent with Plaintiff’s normal physical examinations, Plaintiff’s 18 sporadic reports of back pain, and the ME Dr. Thompson’s hearing testimony. (AR 45.) The 19 Court finds this to be a specific and legitimate reason for assigning reduced weight to the 20 opinions in the earlier time period. See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 21 1195 (9th Cir. 2004) (“[A]n ALJ may discredit treating physicians’ opinions that are . . . 22 unsupported by the record as a whole . . . or by objective medical findings.”); Burch, 400 F.3d at 23 679 (9th Cir. 2005) (“Where evidence is susceptible to more than one rational interpretation, it is 24 the ALJ’s conclusion that must be upheld.”). 25 Defendant argues the ME Dr. Thompson’s testimony is consistent with the ALJ’s finding 26 of medium work before the EOD because evidence before the EOD showed many normal 27 physical findings, such as normal gait, normal strength and reflexes, normal lumbar spine range 1 the ALJ found the Plaintiff’s mild orthopedic findings were consistent with the RFC 2 determination. Although it is true as Plaintiff highlights that the ME testified he could not 3 disagree with Dr. Gabriel’s findings concerning all of Plaintiff’s ailments because of the scope of 4 his orthopedic review of the record and lack of more detailed orthopedic imaging, the ME did 5 testify that evidence from 2015 and up to the consultative exam in May of 2017 showed many 6 normal physical findings, such as normal gait, normal strength and reflexes, normal lumbar spine 7 range of motion, and negative straight leg raising test. (AR 73-74, 86-87, 127-28, 479-80.) The 8 opinion of Dr. Gabriel that the ME stated he could not disagree with was that dated February 22, 9 2019. (AR 75-76; Ex. 18F, AR 559-562.) Defendant contends that if the ALJ had adopted Dr. 10 Gabriel’s limitations prior to the EOD, the ALJ would have improperly relied on an outlying 11 opinion in the context of the entire record. The Court finds support in the record for this 12 argument, which lends to finding the ALJ’s conclusions to be supported by substantial evidence. 13 See Burch, 400 F.3d at 679 (9th Cir. 2005); Shaibi v. Berryhill, 883 F.3d 1102, 1108 (9th Cir. 14 2017) (“As we cannot say that the ALJ's interpretation of the available evidence was not 15 rational.”). 16 Defendant argues Dr. Gabriel’s examination findings prior to November 15, 2018, failed 17 to support his assessed limitations prior to the EOD, as Dr. Gabriel documented no 18 musculoskeletal abnormalities, except for one notation of back tenderness in June of 2016 (AR 19 481-94, 532-58), and thus the minimal orthopedic findings during the period before the EOD fail 20 to support giving weight to his assessed limitations. The Court largely agrees that these records 21 reflect only the limited notation of back tenderness on physical exam in June of 2016 (AR 493), 22 however, the Court does note these records do contain notations of complaints of back pain. (AR 23 481-94.) Giving due deference to the ALJ, the Court finds the ALJ’s finding that the opined 24 limitations were inconsistent with the normal physical examinations and sporadic reports of back 25 pain to be a specific and legitimate reason supported by substantial evidence. Bayliss, 427 F.3d 26 at 1216 (“[A]n ALJ need not accept the opinion of a doctor if that opinion is brief, conclusory, 27 and inadequately supported by clinical findings.”). 1 consistent with the medical evidence as of September 1, 2015, and that while the ALJ found that 2 Madrid’s hypertension, insomnia and obesity were severe only as of November 15, 2018, these 3 severe impairments were well-documented as of September 1, 2015, citing AR 455- 462, 481- 4 485, 488, 490-494. While Plaintiff argues the ALJ failed to find severe despite earlier records, 5 the ALJ acknowledged these earlier records, the ALJ acknowledged that from May 23, 2016 to 6 July 19, 2016, a period before the EOD, Plaintiff saw Dr. Gabriel for diabetes, hypertension, and 7 back pain. (AR 44.) The Court has reviewed these records cited by Plaintiff. The portion at AR 8 455-462, refers to records largely dated in 2016, with one in December of 2015, and one dated 9 September 1, 2015. The notations in the record do appear to confirm Plaintiff had readings of 10 high blood pressure, and complained of insomnia, and was suffering from diabetic neuropathy. 11 (See AR 481 (June 16, 2017); AR 482 (May 16, 2017); AR 483 (April 25, 2017); AR 484 (April 12 11, 2017); AR 485 (February 23, 2017); AR 488 (November 17, 2016); AR 490-94 (June 13 through October of 2016).) However, these records are largely illegible handwritten notes, and 14 Plaintiff has failed to demonstrate or explain why these records compel a finding of a severe 15 ailment, in light of the ALJ’s opinion as a whole and RFC determination. See Geoffrey William 16 H. v. Comm’r of Soc. Sec., No. 4:18-CV-05151-RHW, 2020 WL 1918098, at *8 (E.D. Wash. 17 Feb. 24, 2020) (“A diagnosis itself does not mean that an impairment is severe . . . To be severe, 18 an impairment must significantly limit a claimant’s ability to perform basic work activities . . . a 19 claimant cannot simply point “to a host of diagnoses scattered throughout the medical record . . . 20 [r]ather, a claimant must specifically identify functional limitations that the ALJ failed to 21 consider in the sequential analysis.”) (citations and internal quotation marks omitted); Webber v. 22 Berryhill, No. 2:15-CV-00295-MKD, 2017 WL 722593, at *5 (E.D. Wash. Feb. 23, 2017) 23 (“[T]he fact that a medically determinable condition, or diagnosis, exists does not 24 automatically mean that the symptoms are ‘severe’ or ‘disabling’ as defined by the Social 25 Security regulations.”); Gunnells v. Comm'r of Soc. Sec. Admin., No. 26 CV2000357TUCSHREJM, 2021 WL 6295831, at *2 (D. Ariz. Nov. 24, 2021) (same); Browning 27 v. Colvin, No. 1:14-CV-1908-BAM, 2016 WL 1243495, at *4 (E.D. Cal. Mar. 30, 2016) (“[T]he 1 either severe or disabling.”); Kimbell v. Comm'r of Soc. Sec. Admin., No. CV-18-04113-PHX- 2 SPL, 2019 WL 6522717, at *3 (D. Ariz. Dec. 4, 2019) (“The level of functional impairment 3 determines whether an impairment is severe, and substantial evidence supports the ALJ's finding 4 that the limitations found by Dr. Whetstone do not support the classification of Plaintiff's mental 5 impairments as severe.”);Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999) (“Although the 6 appellant clearly does suffer from diabetes, high blood pressure, and arthritis, there is no 7 evidence to support his claim that those impairments are ‘severe.’ ”). 8 For all of the above reasons, the Court finds the ALJ’s assignment of reduced weight to 9 Dr. Gabriel’s opinion before the EOD was supported by specific and legitimate reasons based on 10 substantial evidence in the record as a whole, and free from remandable legal error. 11 D. Plaintiff was Afforded a Full and Fair Hearing on the Issue of the Determination of the Established Onset Date and the Determination of the 12 EOD and Ultimate RFC is Supported by Substantial Evidence 13 14 In disability determinations, “the critical date is the date of onset of disability, not the 15 date of diagnosis.” Swanson v. Sec. of Health & Human Servs., 763 F.2d 1061, 1065 (9th Cir. 16 1985). The ALJ’s determination of a claimant’s disability onset date must be supported by 17 substantial evidence. See Id.; A.H. v. Comm’r of Soc. Sec., No. 19-CV-03038-LB, 2020 WL 18 5443243, at *6–7 (N.D. Cal. Sept. 10, 2020) 19 SSR 18-01p provides the following requirements and guidance for determining an EOD, 20 and direct the ALJ to begin by considering whether the EOD can be established as of the 21 potential onset date (“POD”): 22 When we need to determine a claimant’s EOD, we start by considering whether we can establish the EOD as of the claimant’s 23 potential onset date (POD) of disability. The POD is the first date when the claimant met the non-medical requirements during the 24 period covered by his or her application. The POD is the earliest date that we consider for the EOD because it affords the claimant 25 the maximum possible benefits for the period covered by his or her application. The POD may be the same as, earlier than, or later 26 than the claimant’s alleged onset date, which is the date that the claimant alleges he or she first met the statutory definition of 27 disability . . . . . . If the claimant meets the statutory definition of disability on his 1 earliest date at which the claimant meets both the statutory definition of disability and the non-medical requirements for 2 entitlement to benefits under title II or eligibility for SSI payments under title XVI during the period covered by his or her application. 3 In contrast, if the claimant first meets the statutory definition of disability after his or her POD, we use the first date that the 4 claimant meets both the statutory definition of disability and the applicable non-medical requirements as his or her EOD. 5 6 Soc. Sec. Ruling, Ssr 18-01p; Titles II & Xvi: Determining the Established Onset Date (Eod) in 7 Disability Claims, SSR 18-01P (S.S.A. Oct. 2, 2018).7 8 Thus, the starting point is the POD. In consideration of this starting point, the Court first 9 finds that the hearing testimony does support the position that the ALJ was simply adopting an 10 amended earliest onset date or POD based on the attorney’s proffer, in line with the SSR. (See 11 AR 77 (“[Atty:] . . . basically the 9/1/15 is 17 months prior to the -- to his application date. 12 That’s the earliest he could get paid. ALJ: Okay. Okay, I find it reasonable. I’ll adopt it.”). 13 SSR 18-01p continues to describe the claimant’s duty to provide evidence to prove when 14 the period of disability began. SSR 18-01p (stating there is generally “a statutory obligation to 15 provide . . . the evidence to prove [disability] [and the] obligation includes providing [the 16 agency] with evidence to prove . . . when [the claimant] first met the statutory definition of 17 disability.”). While not discussed or cited by the parties, the SSR makes it clear that the ALJ has 18 the discretion to utilize a ME when inferring an onset date. 19 7 The regulations also provide that the ALJ may determine the EOD to be in a previously adjudicated period, if the 20 “rules for reopening are met and the claimant meets the statutory definition of disability and the applicable non- medical requirements during the previously adjudicated period . . . however, [reopening] is at the discretion of the 21 adjudicator.” SSR 18-01p. Plaintiff argues the ALJ erred by failing to reopen the prior application. (Br. 3 n.1.) Plaintiff’s only discussion of this argument is contained in one footnote. (Id.) The ALJ made the following findings 22 in concluding not to reopen the previous application: 23 The claimant was previously denied benefits at the reconsideration level on April 18, 2016 (lA/2). A consultative examination from that denial, affirmed by a medical consultant, shows claimant was capable 24 of medium work (SF/1- 5; 8F /1-2). Claimant has submitted minimal records with unremarkable physical examinations related to his prior denial (lF /1-3; 4F / 4-9; 9F /1-7). Thus, I concluded that he has submitted 25 no new and material evidence to justify reopening of his prior denial. Therefore, he was capable of medium work on April 18, 2016. Because of the progressive nature of his diseases processes, I find that the evidence is sufficient to demonstrate that he could perform no more that light work on his established 26 onset date of November 15, 2018, when he was 62 years old. 27 (AR 41.) The Court finds that the ALJ provided legally sufficient reasons under the applicable standards for reopening the previously adjudicated period, and Plaintiff has failed to demonstrate legal error as to this aspect of 1 At the hearing level of our administrative review process, if the ALJ needs to infer the date that the claimant first met the statutory 2 definition of disability, he or she may call on the services of an ME by soliciting testimony or requesting responses to written 3 interrogatories (i.e., written questions to be answered under oath or penalty of perjury). The decision to call on the services of an ME is 4 always at the ALJ’s discretion. Neither the claimant nor his or her representative can require an ALJ to call on the services of an ME 5 to assist in inferring the date that the claimant first met the statutory definition of disability. 6 7 Id. 8 The issue as presented by Plaintiff is not precisely an argument that the ALJ failed to 9 obtain testimony from an ME when inferring an EOD. However, the Plaintiff’s argument that 10 the ALJ’s language used when adopting the amended proffered onset date at the hearing resulted 11 in an unfair hearing because counsel was allegedly under the impression the date would be 12 adopted and thus no need to question the ME that was present as to the issue of an EOD, presents 13 analogous issues that the Court finds elucidated by a discussion of this SSR, and the decisions 14 that have applied it and its previous version. 15 SSR 18-01p became applicable on October 2, 2018, and the agency is to apply it to both 16 “new applications filed on or after the applicable date of the SSR and to claims that are pending 17 on and after the applicable date,” which “means that [the agency] will use this SSR on and after 18 its applicable date, in any case in which we make a determination or decision.” SSR 18-01p. 19 The regulation expressly states that the agency expects “Federal courts will review our final 20 decisions using the rules that were in effect at the time we issued the decisions [and] [i]f a court 21 reverses [a] final decision and remands a case for further administrative proceedings after the 22 applicable date of this SSR, [the agency] will apply this SSR to the entire period at issue in 23 appropriate cases when we make a decision after the court’s remand.” SSR 18-01p. 24 The hearings before the ALJ in this matter were held on April 2, 2019, and August 8, 25 2019, respectively, and therefore SSR 18-01p was in effect. “Although Social Security Rulings 26 do not have the same force and effect as the statute or regulations, they are binding on all 27 components of the Social Security Administration, ... and are to be relied upon as precedents in adjudicating cases.” Orn v. Astrue, 495 F.3d 625, 636 (9th Cir. 2007) (quoting 67 Fed.Reg. at 1 57860); see also Gutierrez v. Astrue, No. CV 10-05399-VBK, 2011 WL 2261296, at *2 (C.D. 2 Cal. June 7, 2011) (“While Social Security Rulings do not carry the force and effect of law, they 3 are relevant to construe the Social Security Administration’s interpretation of its own regulations 4 and the statutes which it is empowered to administer.”). 5 As noted above SSR 18-01p gives discretion to the ALJ who may call an expert to assist 6 when inferring an EOD. SSR 18-01p rescinded and replaced the previous SSR 83-20, which 7 stated in relevant part: 8 In some cases, it may be possible, based on the medical evidence to reasonably infer that the onset of a disabling impairment(s) 9 occurred some time prior to the date of the first recorded medical examination, e.g., the date the claimant stopped working. How 10 long the disease may be determined to have existed at a disabling level of severity depends on an informed judgment of the facts in 11 the particular case. This judgment, however, must have a legitimate medical basis. At the hearing, the administrative law 12 judge (ALJ) should call on the services of a medical advisor when onset must be inferred. If there is information in the file 13 indicating that additional medical evidence concerning onset is available, such evidence should be secured before inferences are 14 made. 15 Titles II & Xvi: Onset of Disability, SSR 83-20 (S.S.A. 1983) (emphasis added). 16 The Ninth Circuit has in fact relied on SSR 83-20 predecessor in holding an ALJ was 17 required to have elicited testimony from a medical expert when inferring an EOD. The previous 18 SSR gave less discretion to the ALJ, and the Ninth Circuit strictly applied the “should” language 19 in the ruling and required the ALJ to consult a medical expert if the medical evidence was 20 ambiguous and medical inferences needed to be made: 21 In DeLorme, we held that in this context “should” means “must.” 924 F.2d at 848. If the “medical evidence is not definite 22 concerning the onset date and medical inferences need to be made, SSR 83–20 requires the administrative law judge to call upon the 23 services of a medical advisor and to obtain all evidence which is available to make the determination.” Id.; see also Morgan v. 24 Sullivan, 945 F.2d 1079 (9th Cir.1991) (reversing in part an ALJ's determination of the onset date of mental disorders without the 25 assistance of a medical expert). 26 In this case, the record demonstrates that Armstrong suffered from various impairments prior to March 31, 1992 . . . The record, 27 however, does not determine when those impairments became disabling. The ALJ chose the protective date to start providing 1 that was not necessarily the date on which he became disabled. Indeed, in March 1994, Armstrong was diagnosed with numerous 2 mental disorders including depression, dysthymia and feelings of social isolation. Although not diagnosed until 1994, Armstrong’s 3 depression could have been disabling long before that time. His wife divorced him in 1986 and since 1988 Armstrong has not 4 engaged in meaningful employment. Moreover, Armstrong testified that he has suffered from depression evidenced by crying 5 spells since before his disability insurance expired. The record also shows that Armstrong has for the last 30 years experienced 6 deteriorating health problems. Exactly when Armstrong's various impairments became disabling is unclear. Therefore, the ALJ was 7 required to call a medical expert to aide in determining the date of onset. Morgan, 945 F.2d at 1082–83; DeLorme, 924 F.2d at 848– 8 49. The Commissioner of Social Security (“Commissioner”) argues 9 that the ALJ did not err in refusing to call a medical expert because Armstrong did not fulfill his burden of proving that he was 10 disabled prior to March 31, 1992. If, as the Commissioner, argues an ALJ does not have to call a medical expert unless the claimant 11 has fulfilled his burden of proving an onset date, SSR 83–20 would have no application. If the claimant proved a date, there would be 12 no need to call a medical expert, and if the claimant, as in this case, was unable to prove a date, then the ALJ would deny disability 13 benefits because the claimant failed to carry his burden. We refuse to interpret the claimant's burden as eliminating SSR 83–20's 14 requirement. Consequently, we reaffirm this court’s previous holding that where a record is ambiguous as to the onset date of 15 disability, the ALJ must call a medical expert to assist in determining the onset date. 16 17 Armstrong v. Comm’r of Soc. Sec. Admin., 160 F.3d 587, 590 (9th Cir.1998). Subsequent Ninth 18 Circuit decisions and courts applying it particularly find ambiguity of medical records requiring 19 inferences where the claimant was suffering from mental impairments that may have affected the 20 ability to obtain medical treatment, before dates that medical records may actually appear in the 21 record: 22 The Rule suggests that when the evidence regarding date of onset of mental impairment is ambiguous, as it is here, the ALJ should 23 determine the date based on an informed inference. See Blankenship v. Bowen, 874 F.2d 1116, 1122–23 (6th 24 Cir.1989) (recognizing progressive nature of mental impairments and purpose of SSR 83–20 to permit the ALJ to make reasonable 25 inferences regarding onset date). Such an inference is not possible without the assistance of a medical expert. 26 In this case the ALJ made the inference regarding the date of onset 27 in favor of the government without the expertise required by SSR 83–20. Because the ALJ’s onset date determination was without a 1 should review the evidence of the onset of mental impairment with the assistance of a medical advisor pursuant to SSR 83–20. 2 3 Morgan v. Sullivan, 945 F.2d 1079, 1082–83 (9th Cir. 1991); Herrera v. Barnhart, 379 F. Supp. 4 2d 1103, 1109 (C.D. Cal. 2005) (finding given the duty of the ALJ to fully and fairly develop the 5 record and assure the claimant’s interest are considered, “it was especially important for the ALJ 6 to, at a minimum, obtain the testimony of a medical advisor[,] [y]et, ‘the ALJ made the inference 7 regarding the date of onset in favor of the government without the expertise of a medical advisor, 8 required by SSR 83–20[,] [and] [b]ecause the ALJ’s onset date determination was made without 9 a legitimate medical basis, it cannot stand.’ ”) (quoting Morgan, 945 F.2d at 1083). However, 10 under SSR 83-20, the ALJ’s obligations did not arise if there was no finding of disability: 11 Ninth Circuit case law interpreting SSR 83–20 states that it applies when an ALJ is confronted with “ambiguous” evidence about the 12 onset date. Armstrong v. Comm'r of Soc. Sec. Admin., 160 F.3d 587, 590 (9th Cir.1998). 13 Here, however, the ALJ did not err by not inferring a disability 14 onset date, or by not calling a medical expert to help establish an onset date. Because the ALJ did not find Plaintiff 15 disabled at any time from the alleged onset date, October 23, 2006, through the date of the ALJ's decision, SSR 83–20 did not 16 apply. See Sam v. Astrue, 550 F.3d 808, 810 (9th Cir.2008) (because ALJ found the petitioner was not disabled at any time 17 through the date of the decision, the issue of when he became disabled did not arise and the procedures articulated in SSR 83–20 18 did not apply); Scheck v. Barnhart, 357 F.3d 697, 701 (7th Cir.2004) (“SSR 83–20 addresses the situation in which an 19 administrative law judge makes a finding that an individual is disabled as of an application date and the question arises as to 20 whether the disability arose at an earlier time.”) (emphasis added). Although SSR 83–20 did not apply to the ALJ's June 6, 2012 21 decision because he did not find Plaintiff disabled, if the ALJ finds Plaintiff disabled on remand he should determine whether SSR 83– 22 20 applies and, if so, obtain a medical expert to determine the disability onset date. 23 24 Perkins v. Colvin, 45 F. Supp. 3d 1137, 1156 (D. Ariz. 2014). 25 Having framed the background of how the rescinded SSR was applied, the Court now 26 turns to consideration of cases applying the more recent SSR. It is clear SSR 18-01p gives 27 greater discretion to the ALJ as to whether call for the testimony of an ME when determining the EOD: 1 Notably, Plaintiff’s cited cases rely on SSR 83-20, which states that the ALJ ‘should call on the services of a medical advisor when 2 onset must be inferred’ (emphasis added). The Ninth Circuit has determined that in the context of SSR 83-20, “ ‘should’ means 3 ‘must.’ ” Armstrong v. Comm'r of SSA, 160 F.3d 587, 590 (9th Cir. 1998); see also Diedrich, 874 F.3d at 638 (“Relying on SSR 4 83-20, we have held that where a record is lacking and ambiguous as to the onset date of disability, ‘the ALJ must call a medical 5 expert to assist in determining the onset date.’ ” (citing Armstrong, 160 F.3d at 590)). 6 SSR 83-20, however, was rescinded and replaced by SSR 18- 7 01p in October 2018, before Plaintiff's April 5, 2019 administrative hearing . . . In contrast to SSR 83-20, SSR 18-01p gives ALJs the 8 discretion to appoint a medical advisor to help determine the established onset date, but does not require them to do so[.] 9 10 Elizabeth M. v. Saul, No. ED CV 20-00819-DFM, 2021 WL 1060232, at *4 (C.D. Cal. Mar. 19, 11 2021); see also Frederick C. v. Saul, No. 8:20-CV-00018-KES, 2020 WL 6135073, at *4 (C.D. 12 Cal. Oct. 16, 2020) (“After the effective date of SSR 18-1p, ALJs have discretion to appoint an 13 ME to assist them in determining the established onset date (“EOD”) of a progressive disease, 14 but they are never required to do so . . . [t]he decision to call on the services of an ME is always 15 at the ALJ’s discretion.”) (quoting SSR 18-01p, at § I.B.2.). 16 Plaintiff argues a reading of the statements at the hearing leads to only one conclusion: 17 that the ALJ would issue a fully favorable decision as of September 1, 2015. The Court 18 disagrees. 19 The Court finds the discussion at the first hearing to be significant as to the method and 20 reasoning of the ALJ in trying to work through the potential applicability of Dr. Gabriel’s 21 opinion, and sheds some light on the ALJ’s overall analysis and acceptances of the amended 22 alleged onset date at the second hearing. Specifically, at the first hearing, counsel submitted that 23 Dr. Gabriel’s opinion should be given great weight, with a less than a sedentary RFC. (AR 64.) 24 The ALJ responded that he didn’t think he could take the opinion all the way back to the alleged 25 onset date, as Dr. Gabriel only started seeing Plaintiff in 2015. (AR 64.) Counsel responded that 26 he would be agreeable to amend the onset date to when Dr. Gabriel first saw Plaintiff in 27 September of 2015. There was no indication that the ALJ was accepting the opinion, and in that first hearing, before counsel was interrupted by a knock at the door, the ALJ in fact was stating 1 “if I were to accept Dr. Gabriel’s RFC . . . we wouldn’t have to quibble about so much [about 2 whether Plaintiff could perform medium work or light work].” (AR 64.) At the August 8, 2019 3 hearing, the ALJ noted that Plaintiff had been of advanced age as of 2013; the ALJ asked 4 Plaintiff how long he had been treating with Dr. Gabriel, and Plaintiff answered about 4 years. 5 The ALJ stated 2015 was reasonable, and noted the 2017 internal medical medicine consultative 6 exam had assessed Plaintiff at light. (Br. 7; AR 76, 475-480.)8 The ALJ asked if counsel had a 7 proposal for an onset date. Counsel responded with September 1, 2015, and answered the basis 8 for such date was the fact he had been seeing Dr. Gabriel for many years; that Plaintiff stopped 9 working because of his uncontrolled diabetes and hypertension; that those conditions and the 10 records reflect non-controlled diabetes and hypertension; and the September 1, 2015 date was 17 11 months prior to the application date, the earliest date Plaintiff could be get paid. The ALJ stated 12 he found such proffer to be reasonable, and that he would adopt it. (AR 77.) 13 Based on the Court’s review of the hearing testimony and the opinion, while it is true the 14 ALJ could have been more clear at the hearing that the proffered date was only being adopted as 15 an alleged onset date, and could have discussed the fact the alleged onset date was proffered at 16 the hearing and that he was rejecting it in the opinion, the Court does not find remandable error. 17 Most importantly, taking the entirety of the ALJ’s opinion and analysis of the evidence of record 18 in determining the EOD, the determination was supported by substantial evidence, and Plaintiff 19 has not demonstrated that he was not afforded a full and fair hearing on the issues relevant to the 20 ALJ’s ultimate conclusions. 21 This is not a case where the ALJ’s determination of the EOD was not supported by 22 23 8 It appears the ALJ may have mistakenly stated the opinion was light instead of medium here. Plaintiff’s briefing appears to state the assessment was at light. (Br. 7.) Plaintiff’s briefing, however, did not make a point of 24 contention (any confusion or discrepancy between light and medium), and the Defendant did not address, aside from stating Dr. Sachdeva assessed Plaintiff at medium. (Compare Br. 7, with Opp’n 7.) This was not mentioned in the 25 reply briefing. The Court is somewhat troubled by the conjunction of the apparent inconsistent statements within the opinion, however the inconsistency is somewhat clarified by the hearing testimony at one point where the ALJ and counsel have a discussion of the overlap or border of light and medium work weigh limits (AR 63), and Dr. 26 Sachdeva’s opined weight limitations do match with the definition of medium work. See 20 C.F.R. § 404.1567(b)- (c) (“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects 27 weighing up to 10 pounds . . . Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds.”). The Plaintiff does not dispute that the hypothetical presented to 1 analysis and reliance on specific medical evidence in the record. Contra Emilio U. v. Saul, No. 2 1:19-CV-03234-FVS, 2020 WL 7010226, at *5-6 (E.D. Wash. Oct. 14, 2020) (“The June 7, 2016 3 EOD does not align with any specific objective evidence to support the change in the RFC. 4 Instead, it appears that the ALJ simply made a procedural choice based on Plaintiff's second SSI 5 application . . . Therefore, the ALJ’s EOD of June 7, 2016 is not supported by substantial 6 evidence, and is merely a decision made to align with Plaintiff's second application for SSI.”). 7 There was not a lack of medical records for the ALJ to utilize in determining the EOD, as is 8 common in cases involving mental ailments where an ALJ that did not have medical evidence 9 was then required to infer in the absence of adequate records. See Speight v. Apfel, 108 F. Supp. 10 2d 1087, 1092 (C.D. Cal. 2000) (“Because “[m]ental disorders may manifest themselves over a 11 period of time [,] ... the precise date of onset of a disabling psychological impairment may be 12 difficult, or impossible to ascertain, and the services of a specialist may be necessary to infer the 13 onset date.”) (quoting Morgan, 945 F.2d at 1081); Quarles v. Barnhart, 178 F. Supp. 2d 1089, 14 1095 (N.D. Cal. 2001) (“Because this court concludes that the ALJ was required to consult a 15 medical expert since ambiguities existed regarding the onset date, this matter is reversed and 16 remanded . . . there was limited evidence that Quarles suffered from a mental disability prior to 17 her DLI and because there was an ambiguity as to the onset date, the ALJ should have called a 18 medical expert.”). The Court finds the ALJ’s determination of the EOD to be supported by 19 substantial evidence. The ALJ was not required to elicit further testimony from the ME 20 concerning the EOD. Frederick C., 2020 WL 6135073, at *4 (“Plaintiff has failed to 21 demonstrate legal error by the ALJ. SSR 18-01p expressly establishes that ALJs are never 22 required to appoint an ME to ascertain the onset date of symptoms.”); 23 The Court finds Plaintiff was afforded a full and fair hearing, despite the fact there may 24 have been a misunderstanding or lack of discussion of whether the ALJ was adopting the 25 proffered date as the new alleged onset date, or Plaintiff’s belief that the ALJ was adopting it as 26 the date the ALJ in fact would find Plaintiff to be disabled. There is no statement from the ALJ 27 that he would find Plaintiff disabled. Rather, the ALJ appeared to only accept the date as the 1 sedentary opinion of Dr. Gabriel was adopted, the ALJ would consider the period of disability to 2 begin potentially on a new proffered date. The Court agrees with Defendant that the fact 3 Plaintiff’s attorney stated the proffered new onset date was essentially based on the earliest date 4 that benefits could be payable during the discussion in question (AR 76), lends to a finding that 5 the ALJ and counsel were simply establishing a workable alleged onset date given the date could 6 not extend back to 2013. 7 The ALJ determined that from April 2016 until November 15, 2018, the minimal 8 objective findings supported an RFC for medium work, which was supported by the findings and 9 opinions of the consultative examiner Dr. Sachdeva, and the state agency reviewing physicians, 10 other doctors, and was consistent with the ME testimony concerning the minimal orthopedic 11 findings prior to the EOD. (AR 73-74, 86-87, 127-28, 479-80) It was also clear that, in 12 determining the EOD, the ALJ relied upon Dr. Gabriel’s November 15, 2018 treatment note in 13 which he noted that Plaintiff’s diabetes was uncontrolled, referenced his last A1C of 14, and that 14 Plaintiff complained of limitations due to headaches and dizziness, which the ALJ found 15 reasonable in light of the high A1C levels (AR 46, 534). 16 There is a special duty of the ALJ to develop the record, even when represented by 17 counsel, Tonapetyan, 242 F.3d at 1150,9 to inquire and explore all relevant facts, and that the 18 Commissioner may develop the record by obtaining a consultative physical exam or by ordering 19 testimony from a medical expert, including on the issue of establishing an onset date through 20 inference. However, the Court finds no error in the ALJ’s statements made at the hearing, nor in 21 the determination of the EOD as based on the medical evidence in the record, nor in the ALJ’s 22 ultimate determination of the RFC. An RFC finding is not dependent on a doctor’s medical 23 opinion, but is instead an administrative finding for the ALJ to make based on the record as a 24 whole, 20 C.F.R. § 404.1546(c) (“the administrative law judge . . . is responsible for assessing 25 your residual functional capacity”). The Court finds the RFC determination both before the 26 27 9 If “the claimant is unrepresented, however, the ALJ must be especially diligent in exploring for all the relevant facts.” Tonapetyan, 242 F.3d at 1150. 1 EOD determined by the ALJ, to be supported by substantial evidence and free from remandable 2 error; that the ALJ was not required to adopt the alleged onset date as the EOD, but rather the 3 opinion reasonably establisees that the ALJ adopted it as an amended alleged onset date; and the 4 statement made by the ALJ at the hearing did not result in Plaintiff being denied a full and fair 5 hearing, as the ALJ was not required to call or elicit further testimony on the issue of 6 determining the EOD. 7 The Court finds the ALJ’s RFC determination to be proper, reasonable, based on 8 substantial evidence in the record, and not legally deficient. See Brown v. Berryhill, 697 F. 9 App’x 548, (Mem)–549 (9th Cir. 2017) (“Because the record evidence was not ambiguous and 10 the record was sufficient to allow for proper evaluation of the evidence, the ALJ was not 11 required to re-contact Brown’s doctors or further develop the record.”). The ALJ was not 12 required to adopt the findings or opinion of any of the physicians but rather was required to 13 determine the RFC based on all of the evidence in the record. See 20 C.F.R. § 404.1527(d)(2) 14 (“Although we consider opinions from medical sources on issues such as . . . your residual 15 functional capacity . . . the final responsibility for deciding these issues is reserved to the 16 Commissioner.”); Rounds v. Comm’r of Soc. Sec., 807 F.3d 996, 1006 (9th Cir. 2015) (“the ALJ 17 is responsible for translating and incorporating clinical findings into a succinct RFC”); Vertigan 18 v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001) (“It is clear that it is the responsibility of the ALJ, 19 not the claimant’s physician, to determine residual functional capacity.”). 20 Based on the arguments and law before the Court, as well as review of the ALJ’s opinion 21 as a whole, the entirety of the hearing records, and the medical evidence of record, the Court 22 cannot find any discernible remandable error. 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 1 CONCLUSION AND ORDER 2 Based on the foregoing, the Court finds that the ALJ did not commit error in weighing 3 | Dr. Gabriel’s opinion, in failing to provide a full and fair hearing, nor in determining the 4 | Residual Functional Capacity before and after the established onset date. The Court finds the 5 | ALJ’s decision to be supported by substantial evidence in the administrative record, and free 6 | from remandable legal error. 7 Accordingly, IT IS HEREBY ORDERED that Plaintiffs appeal from the decision of the 8 | Commissioner of Social Security is DENIED. It is FURTHER ORDERED that judgment be 9 | entered in favor of Defendant Commissioner of Social Security and against Plaintiff Jose 10 | Edward Madrid. The Clerk of the Court is DIRECTED to CLOSE this action. 11 0 IT IS SO ORDERED. FA. ee 13 | Dated: _ February 11, 2022 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28