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Sandifer-Conwell v. Commissioner of Social Security

United States District Court, W.D. Washington, Seattle

April 9, 2019



          Marsha J. Pechman United States District Judge.

         THIS MATTER is before the Court upon Plaintiff's Objections (Dkt. No. 13) to the Report and Recommendation of the Honorable Brian A. Tsuchida, United States Magistrate Judge. (Dkt. No. 12.) Having reviewed the Report and Recommendation, the Objections, and all related papers, the Court ADOPTS the Report and Recommendations, AFFIRMS the Commissioner's decision, and DISMISSES this case with prejudice.


         The relevant facts and procedural background are set forth in detail in the Report and Recommendation. (Dkt. No. 12.) Plaintiff raises three objections to the Report and Recommendation: (1) The Report and Recommendation failed to apply the correct legal standard in evaluating whether the ALJ should have consulted a medical expert; (2) Magistrate Judge Tsuchida erred in finding that the ALJ's decision to discount Dr. Dym's opinion was a rational interpretation of the evidence; and (3) Magistrate Judge Tsuchida's conclusion that the ALJ properly discounted Plaintiff's testimony was error. (Dkt. No. 13.)

         I. Legal Standard

         Under Federal Rule of Civil Procedure 72, the Court must resolve de novo any part of the Magistrate Judge's Report and Recommendation that has been properly objected to and may accept, reject, or modify the recommended disposition. Fed.R.Civ.P. 72(b)(3); See also 28 U.S.C. § 636(b)(1).

         II. Plaintiff's Objections

         A. Medical Expert

         On November 28, 2014 Plaintiff had surgery on her left ankle and appeared, during subsequent post-operative visits, to be healing well. (Tr. at 497 500.) An X-ray performed on January 8, 2015 showed “excellent correction of the flat foot.” (Tr. at 22 (citing Ex. 4F/13).) The ALJ found that Plaintiff's surgery “yielded excellent results and significantly improved her pain until after the date last insured when she reinjured her left ankle and required additional surgical intervention.” (Tr. at 22.) In March 2015, three months after her date last insured, Plaintiff presented to her doctor with a “new injury” in her left foot, which he diagnosed as a reinjury of her posterial tibial tendon and stated that the issues with this tendon seemed “to be recurrent in nature.” (Tr. at 489-90.)

         Plaintiff contends that the ALJ was required to retain a medical expert because the timing of her second ankle injury was unclear from the evidence and the ALJ therefore made an improper medical inference about the onset date of the second injury. (Dkt. No. 13 at 1-3.) “In the event that the medical evidence is not definite concerning the onset date and medical inferences need to be made, [Social Security Ruling] 83-20 requires the [ALJ] to call upon the services of a medical advisor and to obtain all evidence which is available to make the determination.” DeLorme v. Sullivan, 924 F.2d 841, 848 (9th Cir.1991). The duty to consult a medical expert, however, is only triggered by “either an explicit ALJ finding or substantial evidence that the claimant was disabled at some point after the date last insured.” Sam v. Astrue, 550 F.3d 808, 811 (9th Cir. 2008). Where, as here, the ALJ determines that the Plaintiff was not disabled “at any time through the date of [the] decision” (Tr. at 22), “the question of when she became disabled did not arise and the procedures prescribed in SSR 83-20 did not apply.” Sam, 550 F.3d at 810.

         Plaintiff, however, maintains that because there was substantial evidence in the record of disability after the relevant period, Social Security Ruling 83-20 and Sam required the ALJ to consult a medical expert. (Dkt. No. 13 at 3.) But Plaintiff points to evidence of a “recurrent” injury that is functionally identical to the left ankle injury the ALJ already evaluated; evidence of that injury led the ALJ to conclude:

[T]he [Plaintiff]'s demonstrated activities of daily living during the period at issue were consistent with an individual who could tolerate [light work]. Significantly, despite her complaints . . . [of] left ankle/foot instability, the evidence shows that she was able to tolerate traveling to Florida, traveling to Italy, and attending the Renaissance Festival, which presumably required a significant amount of walking and overall physical exertion.

(Tr. at 23.)

         Since the ALJ found that Plaintiff's ankle injury was not disabling at any point through the date of the decision, made no explicit finding of disability after the date last insured, and Plaintiff has not pointed to substantial evidence demonstrating ...

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