Heather Glennon v. Jo Anne B Barnhart

Case 2:01-cv-08559-RZ Document 32 Filed 04/16/07 Page 1 of 3 Page ID #:93 O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CA...

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Case 2:01-cv-08559-RZ Document 32 Filed 04/16/07 Page 1 of 3 Page ID #:93

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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HEATHER GLENNON, Plaintiff,

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vs. MICHAEL J. ASTRUE, Commissioner of Social Security Administration,

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Defendant. 16

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CASE NO. CV 01-08559 (RZ) MEMORANDUM OPINION AND ORDER

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Plaintiff’s first of several arguments for reversal of the underlying step-four

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denial of benefits is that the Administrative Law Judge improperly discounted the opinions

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of three treating sources. See Pl.’s Mem. at 12-13. In her September 23, 2003 opinion –

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a date nearly seven years after Plaintiff’s last insured date – the Administrative Law Judge

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first summarized in some detail various evidence supporting a non-disability finding (albeit

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with some limitations), including the assessments of consultative examiners and a medical

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expert. See Administrative Record (AR) 20-23. Next, she explained as follows why she

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found the opinions cited by Plaintiff to be unpersuasive:

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There are numerous other functional assessments

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expressing greater exertional and nonexertional limitations

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submitted by Dr. Rice, Dr. Feldman, Dr. Hutton, Dr. Sasaki and

Case 2:01-cv-08559-RZ Document 32 Filed 04/16/07 Page 2 of 3 Page ID #:94

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Dr. Skenderian. With the exception of Dr. Rice, none of these

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medical sources examined and/or treated the claimant until

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[after] the [December 31, 1996] expiration of her insured status.

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Their assessments do not relate to that [insured] period.

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AR 23. The Court pauses at this point – for the Administrative Law Judge’s explanation

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continues with regard to Dr. Rice, as noted below – to determine whether applicable law

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and substantial evidence support the post-DLI-based rejection of the opinions of

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Drs. Sasaki and Skenderian. (Plaintiff does not discuss two of these doctors, Drs. Feldman

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and Hutton, in this action.)

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Although some discounting of post-DLI opinions can be proper, such opinions

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generally may not be rejected altogether absent a sound explanation based on substantial

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evidence. “The rule in this circuit, as in most circuits, is that ‘reports containing

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observations made after the period for disability are relevant to assess the claimant’s

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disability.’” Smith v. Bowen, 849 F.2d 1222, 1225 (9th Cir. 1988), citing Kemp v.

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Weinberger, 522 F.2d 967, 969 (9th Cir. 1975). When it is necessary to draw medical

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inferences from post-DLI evidence as to the onset date of disability, the Administrative

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Law Judge must consult a medical expert for guidance. See Armstrong v. Commissioner,

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160 F.3d 587, 590 (9th Cir. 1998) (interpreting SSR 83-20); Quarles v. Barnhart, 178

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F. Supp. 2d 1089, 1096-97 (N.D. Cal. 2001) (explaining that the rationale for SSR 83-20’s

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medical-expert mandate is that some disabilities, although diagnosed later, may have had

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an earlier onset).

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Here, the Administrative Law Judge’s pithy explanation for her rejection of

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the post-DLI opinions of Drs. Sasaki and Skenderian was that those doctors did not first

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see Plaintiff until after her DLI and that “[t]heir assessments do not relate to that [pre-DLI]

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period.” AR 24; see also AR 21 (mentioning start dates of treatment by Drs. Sasaki and

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Skenderian). Perhaps so, but the Administrative Law Judge does not explain how she

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reached this conclusion. It is thus impossible for the Court to differentiate between, on the -2-

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one hand, (1) a sound rejection of the two doctors’ post-DLI opinions based on the nature

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and progress of the ailments involved and the sort of examinations conducted; and, on the

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other hand, (2) a rejection of the opinions based solely on their post-DLI dates, in violation

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of Smith v. Bowen. Although the Administrative Law Judge’s opinion incorporated a prior

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opinion from 1999, the 1999 opinion likewise does not include any further explanation for

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discounting or rejecting the post-DLI opinions of Drs. Sasaki and Skendarian. See AR 22

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(incorporation, in current opinion, of 1999 opinion); AR 96-105 (1999 opinion); see

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also AR 156-200 (1999 hearing testimony of medical expert Dr. Cable), AR 183-86 (cross

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examination of Dr. Cable in 1999 hearing about Dr. Sasaki’s post-DLI pain treatments).

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Defendant advances some reasons why the rejection of those opinions is substantively

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sound, but the Court need not and does not address them because it may look only to the

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grounds articulated in the underlying administrative opinion, not to the Commissioner’s

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post hoc defenses of that opinion. See Ceguerra v. Secretary of Health & Human Services,

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933 F.2d 735, 738 (9th Cir. 1991). Remand is required to rectify this.

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The Court expresses no view on the remainder of Plaintiff’s first argument or

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her other arguments for reversal. On remand, however, Defendant may wish to take those

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arguments into consideration.

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For the foregoing reasons, the decision of the Commissioner is reversed and the matter is remanded for further proceedings consistent with this Opinion.

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DATED: April 16, 2007

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RALPH ZAREFSKY UNITED STATES MAGISTRATE JUDGE

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English