United States District Court, D. Arizona
HONORABLE CINDY K. JORGENSON, UNITED STATES DISTRICT JUDGE
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).
Standard of Review
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.
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.”).
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).
Dr. Jeri B. Hassman’s Opinion
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.
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).
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
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).
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. ...