ORDER
ALLISON CLAIRE, Magistrate Judge.
Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for supplemental security income ("SSI") under Title XVI of the Social Security Act. Plaintiff's motion for summary judgment and the Commissioner's cross-motion for summary judgment are pending. For the reasons discussed below, the court will grant plaintiff's motion for summary judgment in part and deny the Commissioner's cross-motion for summary judgment.
PROCEDURAL BACKGROUND
Plaintiff filed her application for SSI on October 30, 2009. Administrative Record ("AR") 26. Plaintiff's application was denied initially on February 10, 2010, and again upon reconsideration on June 22, 2010. Id. On February 16, 2011, a hearing was held before administrative law judge ("ALJ") L. Kalei Fong. AR 26, 34. Plaintiff appeared with both a client advocate, Svetlana Kumansky, and a translator, Alina Chekrijeva, at the hearing. AR 26. In a decision dated May 10, 2011, the ALJ found plaintiff became disabled on April 1, 2011, but that she was not disabled prior to that date. AR 34.
The ALJ made the following findings (citations to 20 C.F.R. and Exhibits omitted):
1. The claimant has not engaged in substantial gainful activity since the alleged onset date.
2. Since the alleged onset date of disability, March 1, 2009, the claimant has had the following severe impairments: hypertension, lumbar degenerative disc disease, vertigo, headaches, reduced vision in the right eye, and obesity.
3. Since the alleged onset date of disability, March 1, 2009, the claimant has not had an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.
4. After careful consideration of the entire record, the undersigned finds that prior to April 1, 2011, the date the claimant become disabled, the claimant had the residual functional capacity to perform medium work as defined in 20 CFR 416.967(c) that involved occasional balancing and that allowed for the avoidance of climbing ladders and exposure to heights.
5. After careful consideration of the entire record, the undersigned finds that beginning on April 1, 2011, the claimant has the residual functional capacity to perform light work as defined in 20 CFR 416.967(b). She is able to lift/carry 20 pounds occasionally and 10 pounds frequently; stand/walk for less than two hours in an eight-hour day with appropriate breaks; sit for less than two hours in an eight-hour day with appropriate breaks; occasionally bend, crouch, reach and grasp; and very occasionally kneel. She is to avoid climbing ladders, balancing and being exposed to heights.
6. The claimant has no past relevant work.
7. Prior to the established disability onset date, the claimant was an individual closely approaching advanced age. The claimant's age category has not changed since the established disability onset date.
8. The claimant is not able to communicate in English, and is considered in the same way as an individual who is illiterate in English.
9. Transferability of job skills is not an issue in this case because the claimant does not have past relevant work.
10. Prior to April 1, 2011, considering the claimant's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that the claimant could have performed.
11. Beginning on April 1, 2011, considering the claimant's age, education, work experience, and residual functional capacity, there are no jobs that exist in significant numbers in the national economy that the claimant can perform.
12. The claimant was not disabled prior to April 1, 2011, but become disabled on that date and has continued to be disabled through the date of this decision.
AR 26-34.
Plaintiff requested review of the ALJ's decision by the Appeals Council, but it denied review on November 25, 2013, leaving the ALJ's decision as the final decision of the Commissioner of Social Security. AR 1-4.
FACTUAL BACKGROUND
Born on October 31, 1956, plaintiff was 52 years old on the date her SSI application was submitted and 54 years old at the time of her administrative hearing. AR 41, 104. Plaintiff has never engaged in substantial gainful activity. AR 33.
LEGAL STANDARDS
The Commissioner's decision that a claimant is not disabled will be upheld if the findings of fact are supported by substantial evidence in the record and the proper legal standards were applied. Schneider v. Comm'r of the Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000); Morgan v. Comm'r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999).
The findings of the Commissioner as to any fact, if supported by substantial evidence, are conclusive. See Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985). Substantial evidence is more than a mere scintilla, but less than a preponderance. Saelee v. Chater, 94 F.3d 520, 521 (9th Cir. 1996). "It means such evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)). "While inferences from the record can constitute substantial evidence, only those `reasonably drawn from the record' will suffice." Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006) (citation omitted). Although this court cannot substitute its discretion for that of the Commissioner, the court nonetheless must review the record as a whole, "weighing both the evidence that supports and the evidence that detracts from the [Commissioner's] conclusion." Desrosiers v. Sec'y of Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985).
"The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citations omitted). "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). However, the court may review only the reasons stated by the ALJ in his decision "and may not affirm the ALJ on a ground upon which he did not rely." Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007); see also Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). In addition, "[t]he ALJ in a social security case has an independent ``duty to fully and fairly develop the record and to assure that the claimant's interests are considered.''" Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001).
The court will not reverse the Commissioner's decision if it is based on harmless error, which exists only when it is "clear from the record that an ALJ's error was `inconsequential to the ultimate nondisability determination.'" Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006) (quoting Stout v. Comm'r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
ANALYSIS
Plaintiff seeks summary judgment on the grounds that the ALJ's residual functional capacity ("RFC") assessment regarding the period prior to April 1, 2011, violates Social Security Rule ("SSR") 83-20.1 The Commissioner, in turn, argues that the ALJ's findings are supported by substantial evidence and are free from legal error. For the reasons discussed below the court finds that the ALJ committed legal error by failing to call a medical expert to opine on the onset date of plaintiff's disabling impairment as required by SSR 83-20.
A. Legal Standards
SSR 83-20 provides guidance regarding the onset date of disability. For onset in disabilities of a non-traumatic origin, medical records containing descriptions of examinations or treatment of the individual serve as the primary element in onset determination. SSR 83-20. Regarding slowly progressing impairments, the regulations give the following instructions:
With slowly progressive impairments, it is sometimes impossible to obtain medical evidence establishing the precise date an impairment became disabling. Determining the proper onset date is particularly difficult, when, for example, the alleged onset and the date last worked are far in the past and adequate medical records are not available. In such cases, it will be necessary to infer the onset date from the medical and other evidence that describe the history and symptomatology of the disease process.
Id.
The regulations further state that
[h]ow long the disease may be determined to have existed at a disabling level of severity depends on an informed judgment of the facts in the particular case. This judgment, however, must have a legitimate medical basis. At the hearing, the administrative law judge (ALJ) should call on the services of a medical advisor when onset must be inferred.
Id.
In DeLorme v. Sullivan, 924 F.2d 841, 848 (9th Cir. 1991), the Ninth Circuit found that "[i]n the event that the medical evidence is not definite concerning the onset date and medical inferences need to be made, SSR 83-20 requires the administrative law judge to call upon the services of a medical advisor and to obtain all evidence which is available to make the determination." Thus, failure to call on a medical expert to assist in determining the date of onset when onset is not otherwise established clearly in the record is legal error. Id. at 589-90; Quarles v. Barnhart, 178 F.Supp.2d 1089, 1096 (N.D. Cal. 2001). "[R]egardless of how careful and well supported the ALJ's inference may be . . . [w]here the evidence is ambiguous and there are indications that the claimant's . . . condition was disabling prior to the [last date insured], then a medical expert must be called." Quarles, 178 F. Supp. 2d at 1096-97; see also Morgan v. Sullivan, 945 F.2d 1079, 1082 (9th Cir. 1991) (reversing in part an ALJ's determination of the onset date of mental disorders without the assistance of a medical expert).
B. Medical History
Plaintiff arrived in the U.S. from Kazakhstan on February 18, 2009, and alleges that she became disabled on March 1, 2009. AR 31. Plaintiff's medical records indicate that her first doctor's visit was with Dr. Vladlen Pogorelov, M.D., at Manzanita Medical Clinic. AR 177-78. Although the records are difficult to decipher, they do clearly indicate that plaintiff suffers from a cataract in her right eye. AR 178. Plaintiff visited Dr. Pogorelov on several other occasions in July, September, October, and November 2009. AR 170-76. Notes taken during these visits are similarly illegible. Id. On May 7, 2009, plaintiff saw Dr. Spencer Silverbach, M.D., for her back pain. AR 187. Dr. Silverbach's report notes that plaintiff had mild disk space narrowing at levels L3 through S1 and mild dextroscoliosis. Id. On July 8, 2009, plaintiff visited the Sacramento Heart & Vascular Medical Associates and was seen by Dr. George Emlein, M.D. AR 186. In an echo report generated that same day, Dr. Emlein concluded that plaintiff had normal cardiac chamber size and function. Id.
On November 19, 2009, Dr. Elliot S. Eisenbury, M.D., wrote a report diagnosing plaintiff with a cataract in her right eye and myopia in her left eye. AR 191-92. Dr. Eisenbury's notes indicate that surgery was contemplated but not performed, without explaining why. Id. Again, much of Dr. Eisenbury's report is illegible. Id. On December 10, 2009, Dr. Pogorelov ordered a balance test for plaintiff to test for vertigo. AR 196. Plaintiff's answers to that balance test revealed that she experienced the sensation of herself spinning weekly for approximately 1 to 3 minutes at a time. AR 197. Plaintiff's responses also indicated that she had been having these symptoms for several years and typically got them when she bent over or turned her head while lying down. Id. Plaintiff described her symptoms as moderate. Id. Plaintiff was subsequently diagnosed with vertigo on December 24, 2009. AR 195.
In January 2010, Dr. James Martin, M.D., conducted an internal medicine evaluation on plaintiff and made a number of findings. AR 212-13. Dr. Martin's report notes that plaintiff complained of high blood pressure and back problems, and that she had been treated for high blood pressure for two years and back problems for three years at that point. Id. Plaintiff also reported that she took ibuprofen, acetaminophen, and lotensin at the time. Id. In addition, plaintiff stated that she had stopped attending school after the 10th grade in Kazakhstan and could read and write in her native tongue but could not speak English. Id. Dr. Martin also noted that plaintiff's cardiac rate and rhythm were regular without murmurs, rubs, or gallops, and that plaintiff cooperated during the exam with minimal grimacing or vocalization of pain. Id. Additionally, Dr. Martin's notes indicate that plaintiff's gait was grossly normal and she was able to walk on her heels and toes. Id.
On January 11, 2010, plaintiff went to the Sutter General Hospital emergency room complaining of abdominal pain and was seen by Dr. Stephen J. Jerwers, D.O. AR 218-20. Dr. Jerwers noted that plaintiff had a history of hypertension and obesity and that she had been taking metoprolol, Motrin, and another unknown pain medication. Id. At the time of her visit Dr. Jerwers described plaintiff as not being in any acute distress, friendly, and alert. Id. Although plaintiff did seem to have some discomfort with the exam, Dr. Jerwers noted that she generally tolerated it well. Id. Nevertheless, Dr. Jerwers did direct that plaintiff be admitted to the hospital on an inpatient status because an abdominal ultrasound revealed probable gallstone pancreatitis. Id. At the hospital plaintiff was given aggressive IV fluids and pain control with morphine. Id. Dr. Jerwers also noted that Dr. Jason Park, M.D., of the surgical hospitalist department agreed to consult with plaintiff concerning her probable gallstone pancreatitis. Id.
After his examination Dr. Park opined that plaintiff was suffering from mild acute pancreatitis, which an ultrasound confirmed was likely caused by gallstones. AR 222. Plaintiff was then discharged to Methodist Hospital for further study and a cholecystectomy on January 13, 2010, because of insurance concerns. AR 216-17, 319. Although plaintiff's pancreatitis had resolved by then, the discharge report notes that surgery was still being considered. Id. Upon being admitted to Methodist Hospital Dr. Hung G. Hoang, M.D., ordered a consultation with one of the hospital's surgeons, Dr. Sen Jone, M.D. AR 319. Dr. Hoang also noted that plaintiff had a history of mild arthritis along with hypertension and obesity. Id. During plaintiff's consultation with Dr. Jone she was completely asymptomatic and accordingly, after consulting with Dr. Jone, Dr. Hoang recommended that plaintiff be discharged to receive outpatient laparoscopic surgery at a later date. AR 325-26. Dr. Hoang commented that plaintiff had probably passed her gallstones, but still recommended she follow up with either him or her primary care physician in one to two weeks. Id.
On January 21, 2010, Dr. L. Desouza, M.D., a state agency medical consultant, generated a case analysis that found plaintiff had a cataract in her right eye, hypertension that was controlled with medication, and back pain with mild disc space narrowing. AR 330-32. Nevertheless, Dr. Desouza noted that plaintiff could perform full squats and walk on her heels and toes during the examination. Id. Based on these observations and plaintiff's medical history Dr. Desouza opined that her impairments were non-severe. Id. On February 10, 2010, Dr. Desouza apparently re-considered his initial assessment in light of plaintiff's mild acute pancreatitis and affirmed it with no changes. Id. On June 22, 2010, another state agency medical consultant, Dr. T. Nguyen, M.D., generated a case analysis that was substantially the same on reconsideration. AR 365-66.
On April 14, 2010, plaintiff was examined by Dr. Mikhail Palatnik, M.D., who noted that she was blind in her right eye and suffered from headaches. AR 381. Dr. Palatnik noted that surgery had so far not been considered an option to correct plaintiff's blindness, and that he would continue monitoring the situation. Id. To combat plaintiff's headaches, Dr. Palatnik recommended ibuprofen and Vicodin. Id. On May 6, 2010, plaintiff was again examined by Dr. Palatnik who opined that she suffered from mild disc space narrowing at L4-5 with endplate sclerosis and spurring. AR 379. Dr. Palatnik also observed early arthritic changes in the sacroiliac joints, with the most change on the left. Id. On May 17, 2010, plaintiff was examined by Dr. George Mednik, M.D., who noticed she had multiple stones in her gallbladder and mild hepatomegaly. AR 377.
On April 4, 2011, Dr. Christine E. Fernando, M.D., examined plaintiff and generated a report detailing her abilities to do work-related activities. AR 418-30. Dr. Fernando noted that plaintiff's chief complaints were bad vision, lower back pain, general pain, and dizziness. AR 418. During the examination, plaintiff cited an old burn injury as the source of her blindness in her right eye. Id. Dr. Fernando also noted that plaintiff had diffuse tender points, including 18 out of 18 fibromyalgia tender points. AR 421. Dr. Fernando was unable to perform a station and gait test because plaintiff was unable to stand on her heels or perform a tandem gait due to dizziness. AR 423. Plaintiff received assistance from her husband during the exam both in getting down from the exam table and walking. Id. In light of the fact that plaintiff seemed to require assistance walking, as well as her history of falls, Dr. Fernando noted that she might benefit from using a cane. Id. Based on these observations Dr. Fernando opined that plaintiff could (1) lift and carry up to 10 pounds frequently; (2) sit for four hours both at one time and total in an eight hour workday, but only with assistance; and (3) stand and walk for one hour both without interruption and total in an eight hour workday, but only with assistance. AR 425-26. Dr. Fernando also opined that plaintiff cannot ambulate far without the use of a cane due to dizziness, can never climb ladders, balance, stoop, crouch, or crawl, and can only occasionally climb stairs and kneel. AR 426, 428. Dr. Fernando stated that plaintiff's vision is impaired, and that she cannot read small print or stare at a computer screen for long. AR 428.
C. Analysis
Based on the facts set forth above, the court finds that the ALJ should have called a medical expert to opine on the onset date of plaintiff's disability because it was not clearly established by the medical evidence. The ALJ's opinion bases the chosen onset date primarily on Dr. Fernando's April 4, 2011, examination. AR 32-33. The ALJ's opinion summarizes Dr. Fernando's findings as detailed above and concludes that plaintiff had the RFC to perform light work as defined in 20 C.F.R. 416.967(b) beginning April 1, 2011. Id. The ALJ accordingly concluded that plaintiff was disabled as of April 1, 2011, as directed by Medical-Vocational Rule 202.09 for someone of plaintiff's age, education, and work experience. AR 34 (citing 20 C.F.R. 416.960(c) and 416.966). The ALJ's opinion also refers to plaintiff's testimony at the February 16, 2011, hearing as evidence that "the claimant's overall strength has diminished while episodes of pain have increased and dizziness has become progressively worse." AR 32.
The problem is that Dr. Fernando's opinion does not clearly establish the onset date of plaintiff's disability. Dr. Fernando's opinion is strong evidence that plaintiff was disabled as of April 4, 2011, but it says nothing about what her condition was like beforehand. What's more, the ALJ's decision does not offer any explanation as to why an earlier onset date is inappropriate in light of evidence that plaintiff had long-lasting, slowly-developing impairments. The most recent medical evidence the ALJ cites prior to Dr. Fernando's relates to a doctor's visit in May 2010, which showed "degenerative disc disease at L4-5 and early arthritic changes of the sacroiliac joints," along with "minimal spondylosis of the lower thoracic spine" without any acute abnormalities.2 AR 31-32. The ALJ's decision does not comment on the year-long period in between that visit and plaintiff's April 4, 2011, visit with Dr. Fernando. The ALJ's decision is also somewhat undermined by the ALJ's own finding that plaintiff's impairments were getting progressively worse based on her February 16, 2011, testimony. AR 32. Plaintiff's testimony implies that her impairments were slowly progressing, and that they may have become disabling sometime prior to the hearing on February 16, 2011.
Finally, the ALJ's finding that plaintiff could perform medium work as defined in 20 C.F.R. 416.967(c) before April 1, 2011, is undermined by the medical evidence of plaintiff's blindness in her right eye. The ALJ's decision describes plaintiff's blindness as treatable through surgery based on the belief that her blindness is caused by a cataract. AR 30. The ALJ's decision notes that surgery was discussed, but never performed; the implication being that plaintiff could receive treatment at a time of her choosing. Id. Unfortunately, there is little evidence to support this finding in the record, and ample evidence to refute it. The only medical record that could be construed to support the ALJ's finding that plaintiff's cataract is treatable is Dr. Eisenbury's, which clearly states that plaintiff suffers from a cataract in her right eye, and that surgery was contemplated but not performed. See AR 48 (citing "Ophthalmology 2-F," Dr. Eisenbury's medical report). There is nothing, however, in Dr. Eisenbury's report that indicates plaintiff's blindness is actually treatable. And what's more, other evidence points to the opposite conclusion. Dr. Palatnik's April 14, 2010, medical report indicates that surgery on plaintiff's cataract was "not considered an option." AR 381. In addition, plaintiff herself has stated that she has been blind since birth, and Dr. Fernando's records actually imply it may have been the result of some sort of burn. AR 418.
The foregoing evidence in the record shows that the onset date must be inferred from the record, as the medical evidence is ambiguous. Accordingly, the court finds that the ALJ's decision not to call a medical expert to opine on the onset of plaintiff's disability violated SSR 83-20.
B. Remand
Plaintiff requests that the decision of the ALJ be reversed and that the court award plaintiff benefits consistent with an onset date of March 1, 2009. The decision whether to remand for further proceedings turns upon the likely utility of such proceedings. Barman v. Apfel, 211 F.3d 1172, 1179 (9th Cir. 2000). In this matter, the court concludes that outstanding issues remain that must be resolved before a determination of disability can be made. Pursuant to this remand, the ALJ shall call a medical expert to testify to the date on which plaintiff's physical impairments became disabling.
CONCLUSION
In light of the foregoing, IT IS HEREBY ORDERED that:
1. Plaintiff's motion for summary judgment (ECF No. 13) is granted in part;
2. The Commissioner's cross-motion for summary judgment (ECF No. 14) is denied; and
3. This matter is remanded for further proceedings consistent with this order.
