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Malherek v. Commissioner of Social Security Administration

United States District Court, D. Arizona

September 26, 2019

Karen Malherek, Plaintiff,
Commissioner of Social Security Administration, Defendant.



         On June 5, 2019, Magistrate Judge D. Thomas Ferraro issued a Report and Recommendation (“R&R”) (Doc. 16) in which he recommended this Court affirm the decision of the Administrative Law Judge (“ALJ”). Plaintiff Karen Malherek has filed an Objection (Doc. 17) and Andrew M. Saul (the “Commissioner”) a Reply (Doc. 18).

         1. Standard of Review

         The Court has reviewed Plaintiff’s Complaint (Doc. 1), the Commissioner’s Answer (Doc. 11), Plaintiff’s Opening Brief (Doc. 13), the Commissioner’s Response Brief (Doc. 14), Plaintiff’s Reply Brief (Doc. 15), the R&R (Doc. 16), Plaintiff’s Objection (Doc. 17), and the Commissioner’s Reply to Objection (Doc. 18). The R&R summarizes that Plaintiff seeks to invalidate the ALJ’s determinations relating to her disability. Plaintiff alleges that the ALJ’s determination that she could sit or stand for two-hour intervals was not supported by substantial evidence and that the ALJ failed to provide a reasoned evaluation of her statements. The Magistrate Judge recommends this Court reject Plaintiff’s allegations and affirm the decision of the ALJ.

         The standard of review that is applied to a magistrate judge’s report and recommendation is dependent upon whether a party files objections – the Court need not review portions of a report to which a party does not object. Thomas v. Arn, 474 U.S. 140, 150 (1985). However, the Court must “determine de novo any part of the magistrate judge’s disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instruction.” Fed.R.Civ.P. 72(b)(3); see also 28 U.S.C. § 636(b)(1) (“A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.”).

         Generally, the findings of the Commissioner are meant to be conclusive. 42 U.S.C. §§ 405(g). A decision “to deny benefits will be overturned only if it is not supported by substantial evidence or it is based on legal error.” Matney on Behalf of Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). The standard is “more than a mere scintilla but is less than a preponderance.” Matney, 981 F.2d at 1019 (internal citations and quotations omitted).

         2. Objections

         A. Dr. Jeri B. Hassman’s Opinion

         Plaintiff alleges that the ALJ erroneously disregarded Dr. Hassman’s medical opinion. See (Doc. 17, pg. 2) (“Ms. Malherek showed that substantial evidence does not support the ALJ’s finding that she could sit two hours at a time because the ALJ erroneously failed to acknowledge and to evaluate Dr. Hassman’s opinion that, prior to Ms. Malherek’s December 31, 2012 date last insured, she could sit only thirty minutes at a time.”). Plaintiff’s objection is unfounded. The ALJ’s decision to assign a lesser weight to Dr. Hassman’s opinion was proper.

         In February 2012, Dr. Bennet Davis examined Plaintiff and determined that Plaintiff hard normal strength, gait, and range of motion in her lumbar spine with minimal pain. (Doc 12-8, pg. 163). Dr. Davis also determined that Plaintiff could rise from a chair without the use of assistance and could position herself without difficulty on the examination table. Id. In contrast, Dr. Hassman performed an in-person evaluation of the Plaintiff in March 2016. This evaluation was intended to determine Plaintiff’s physical condition in 2012. In that evaluation, Dr. Hassman determined that Plaintiff, in 2012, could sit for thirty minutes at a time and for five hours total. (Doc. 17, pg. 2). Dr. Hassman also determined that Plaintiff could stand for fifteen minutes at a time and for one- and one-half hours total. Id. Although Dr. Hassman’s opinion was rendered in 2016 and is retrospective, “it is clear that reports containing observations made after the period for disability are relevant to assess the claimant’s disability. It is obvious that medical reports are inevitably rendered retrospectively and should not be disregarded solely on that basis.” Smith v. Bowen, 849 F.2d 1222, 1225 (9th Cir. 1988) (internal citation omitted). Furthermore, “the Commissioner must provide clear and convincing reasons for rejecting the uncontradicted opinion of an examining physician. And like the opinion of a treating doctor, the opinion of an examining doctor, even if contradicted by another doctor, can only be rejected for specific and legitimate reasons that are supported by substantial evidence in the record.” Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995), as amended (Apr. 9, 1996) (internal citations and quotations omitted).

         However, in this case, the ALJ did not assign less weight to Dr. Hassman’s opinion “solely” because it was retrospective. In addition, Dr. Hassman’s opinion was not uncontradicted. Dr. Hassman’s opinion was afforded less weight because her examination occurred four years after Plaintiff’s date last insured and was inconsistent with the findings of Dr. Davis. In the ALJ’s opinion, she states:

The opinion of Dr. Hassman has been given reduced weight as her examination was performed nearly 4 years after the claimant’s date last insured and was not consistent with the objective evidence from the time of the claimant’s alleged onset date through her date last insured. Although Dr. Hassman opined Ms. Malherek’s established onset date would be when she established care with Dr. Davis in February 2012, her limitations were not consistent with his clinical findings.

(Doc. 12-3, pg. 26).

         During Dr. Davis’s February 2012 examination, he reported that Plaintiff showed normal posture and had full range of motion “of the lumbar spine . . . with minimal pain.” (Doc. 12-8, pg. 163). Dr. Davis reported that Plaintiff could perform deep knee bends and had normal strength and normal gait. Id. Dr. Davis also reported that Plaintiff was not in “acute distress, ” that he “observed no exaggerated or inconsistent pain-related behaviors, ” and that Plaintiff’s “[p]osture was normal.” Id. In sum, Dr. Hassman’s conclusions were in direct contravention of Dr. Davis’s findings. Given that Dr. Davis issued his findings in 2012 and that Dr. Hassman’s opinion is post-dated by four years, the ALJ acted reasonably in assigning a reduced weight to Dr. ...

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