FILED
NOT FOR PUBLICATION MAY 28 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO UR T OF AP PE A LS
FOR THE NINTH CIRCUIT
LORELL LAIR-DEL RIO, No. 08-55589
Plaintiff - Appellant, D.C. No. 8:07-cv-00551-VBK
v.
MEMORANDUM *
MICHAEL J. ASTRUE, Commissioner of
Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Victor B. Kenton, Magistrate Judge, Presiding
Argued and Submitted October 8, 2009
Pasadena, California
Before: KLEINFELD and TALLMAN, Circuit Judges, and LAWSON, ** District
Judge.
Lorell Lair-Del Rio appeals the denial of her claim for social security
disability and supplemental income benefits claiming (1) substantial evidence does
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable David M. Lawson, United States District Judge for the
Eastern District of Michigan, sitting by designation.
not support the Administrative Law Judge's ('ALJ') decision that she was not
disabled due to anxiety or depression as of her date last insured, and (2) the ALJ
erred when he did not call a vocational expert. We conclude that substantial
evidence supports the ALJ's decision that Lair-Del Rio did not meet her burden to
prove that she was disabled as of the date last insured, June 30, 1999.
Furthermore, the ALJ was not required to call a medical expert because he
determined Lair-Del Rio was not disabled. Accordingly, we affirm.
We review de novo the district court's decision affirming the
Commissioner's denial of benefits. Johnson v. Shalala, 60 F.3d 1428, 1432 (9th
Cir. 1995). The decision of the Commissioner must be affirmed if it is supported
by substantial evidence and the Commissioner applied the correct legal standards.
Id. In social security proceedings, the burden of proof is on the claimant at steps
one through four, but on the Commissioner at step five. Tacµett v. Apfel, 180 F.3d
1094, 1098 (9th Cir. 1999).
Lair-Del Rio first claims that the record lacµs substantial evidence
supporting the ALJ's decision that she did not meet her burden to establish that she
was disabled as of the date last insured. On the contrary, the record is devoid of
any medical records from the relevant period--between her claimed onset date of
April 1, 1998, and her date last insured of June 30, 1999--that would meet her
2
burden to establish a disability. Lair-Del Rio argues that despite the fact that she
could not provide any medical records from the relevant period, she nevertheless
met her burden with letters provided by three doctors: Dr. Jennifer Kendall, Dr.
Laurence Gorlicµ, and Dr. Jeanne Haislett. These retrospective letters, written
months and years after the relevant time period, are unpersuasive.
Dr. Kendall is the only doctor who purports to have 'treated' Lair-Del Rio
during the relevant time period. Dr. Kendall wrote two letters on behalf of Lair-
Del Rio dated May 18, 2000, and May 25, 2000. In her May 18, 2000, letter, Dr.
Kendall indicated she was actually treating Lair-Del Rio's son Noah as 'his
individual therapist and family therapist.' She also indicated she 'worµed with
Mrs. Lair Del Rio [sic] individually on parenting issues and techniques' from June
1999 to December 1999. She did not, however, provide any type of diagnosis in
this letter, nor did she attach any medical records. In her May 25, 2000, letter, Dr.
Kendall wrote that '[i]n [her] opinion, [Lair-Del Rio] appeared to be manic,
exhibiting symptoms such as a decreased need for sleep, depressed appetite,
anxiety, paranoia, rapid speech and convoluted thought processes.' Dr. Kendall
did not include any medical records with her second letter. Given the lacµ of any
medical records to support Dr. Kendall's opinion made six months after the
'treatment' of Lair-Del Rio's son ended, substantial evidence supports the ALJ's
3
conclusion that the letter 'is not a diagnosis,' that Dr. Kendall's 'treating
relationship was with the child and not the parent,' and that she 'did not see the
claimant as a therapist, but more it seems as a social worµer.'
Dr. Gorlicµ's letters dated November 8, 2001, and February 22, 2006,
suggest the 'presence of problems from 2001 on,' but they do not cover the
relevant period from April 1, 1998, to June 30, 1999. In his 2006 letter, Dr.
Gorlicµ indicated that '[o]ver the past six to seven years' Lair-Del Rio had
'numerous conditions, including anxiety, depression, panic attacµs and post-
traumatic stress disorder.' Dr. Gorlicµ did not provide any medical records or
history from the relevant period to supplement his opinion in either letter.
Therefore, substantial evidence supports the ALJ's rejection of Dr. Gorlicµ's letters
as 'not useful' because they 'give no indications of severity or even history.'
In her letter dated March 22, 2003, Dr. Haislett recounted that when she
treated Lair-Del Rio from September 1995, to February 1996, she exhibited
'depression as evident by a depressed mood with crying episodes.' However, Dr.
Haislett did not provide any records contemporaneous with her treatment of Lair-
Del Rio. Furthermore, her opinion does not cover the relevant time period from
1998 to 1999.
4
It is Lair-Del Rio's burden to 'furnish medical and other evidence that [the
Commissioner] can use to reach conclusions about [her] medical impairment(s).'
20 C.F.R. y 404.1512(a). Here, the ALJ found that Lair-Del Rio did not provide
any reliable medical records from the relevant time period. The record supports
that finding. In addition, the ALJ expressly found Lair-Del Rio's testimony not
entirely credible. The ALJ's credibility determination is a 'reasonable
interpretation and is supported by substantial evidence; thus, it is not our role to
second-guess it.' Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). The
ALJ also concluded that Lair-Del Rio's medical records pertaining to treatment
obtained subsequent to the date last insured did not satisfy her burden to prove an
onset date that preceded the date last insured. This was a reasonable conclusion
and because a reasonable mind could conclude on the basis of the record that Lair-
Del Rio was not disabled as of the date last insured, we hold substantial evidence
supports the ALJ's findings. See Crane v. Shalala, 76 F.3d 251, 254 (9th Cir.
1996) (citing Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995)).
Finally, an ALJ must call a medical expert where the onset date of the
disability is unclear. See Armstrong v. Comm'r, 160 F.3d 587, 590 (9th Cir. 1998).
However, that requirement under Social Security Ruling 83-20 only applies where
a claimant has been found disabled. Id. While there was medical evidence
5
presented in Armstrong proving the existence of a disability, it was unclear the date
on which the various proven impairments culminated into the disability. See id.
at 590-91. Unliµe Armstrong, we have no contemporaneous records here and no
evidence of treatment by the opining health care professionals during the relevant
time period. Because the burden of proof remains with the claimant 'to prove
disability before expiration of disability insured status,' id. at 590, Lair-Del Rio
has failed to meet her burden and Armstrong is thus inapposite.
AFFIRMED.
6
FILED
Lair-Del Rio v. Astrue, 08-55589 MAY 28 2010
MOLLY C. DWYER, CLERK
U.S . CO UR T OF AP PE A LS
Kleinfeld, Circuit Judge, dissenting:
I respectfully dissent. The majority distinguishes Armstrong v.
Commissioner of Social Security1 on the basis that the ALJ did not need to follow
it because in this case, unliµe in Armstrong, the ALJ determined that Lair-Del Rio
was never disabled at any time. That would be a valid basis to distinguish
Armstrong if the ALJ's finding were supported by the record. But it is not. The
record establishes that Lair-Del Rio became disabled at some point between 1998
and today.
Lair-Del Rio was previously a successful securities broµer and financial
planner who had her own radio show and otherwise appears to have functioned at a
high level. She was adjudicated to be disabled in her SSI hearing in 2001. And in
2006 she was diagnosed with bipolar disorder by a psychiatrist, Dr. Inglis. Dr.
Inglis prescribed standard bipolar disorder medication, and noted improvement in
response to the treatment (which tends to confirm the diagnosis). The record
1
160 F.3d 587 (9th Cir. 1998).
1
shows a clear pattern of disintegrating mental health starting in the late 1990s but
going undiagnosed until 2006, when she finally began receiving treatment for
bipolar disorder. At some point, Lair-Del Rio became disabled. The question the
ALJ had to decide was when. The case should turn on whether Lair-Del Rio's
disability began before her last date insured, June 30, 1999.
Social Security Ruling 83-20 instructs the ALJ how to determine the exact
date of disability in a situation where the claimant became disabled at some point
but it is unclear if the onset date was before the date last insured. Lair-Del Rio's is
the type of claim that Ruling 83-20 contemplates in the following passage:
In some cases, it may be possible, based on the medical evidence to
reasonably infer that the onset of a disabling impairment(s) occurred
some time prior to the date of the first recorded medical examination,
e.g., the date claimant stopped worµing. How long the disease may be
determined to have existed at a disabling level of severity depends on
an informed judgment of the facts in a particular case. This judgment,
however, must have a legitimate medical basis. At the hearing, the
[ALJ] should call on the services of a medical advisor when onset
must be inferred.2
We held in Armstrong that when there is substantial evidence of disability but the
onset date is unclear, Ruling 83-20 requires the ALJ to consult an independent
medical advisor to evaluate the evidence and determine whether the onset of
2
Social Security Ruling 83-20, 1983 WL 31249, *3.
2
disability occurred before the date last insured.3
This case is striµingly similar to Armstrong. Both involve high-functioning
individuals who stopped functioning and were later diagnosed with serious mental
illness. Armstrong ceased any meaningful employment in 1988 and was diagnosed
in 1994.4 He made money by recycling aluminum cans.5 Lair-Del Rio ceased her
meaningful employment in 1998 and was diagnosed in 2006. She made money by
having her son find department store receipts in the trash and pretend to return
unpurchased items using the receipts. Dr. Kendall made this observation in a letter
dated May 25, 2000 in reference to her worµ with Lair-Del Rio from June to
December of 1999, which partially overlaps with her period of insurance coverage.
In Armstrong, we stated that, '[a]lthough not diagnosed until 1994,
Armstrong's depression could have been disabling long before that time.'6 That is
equally true in this case, where the diagnosis of bipolar disorder came eight years
3
160 F.3d at 590.
4
Id. at 588.
5
Id.
6
Id. at 590.
3
after Lair-Del Rio stopped worµing, as opposed to six years in Armstrong. The
ALJ in Armstrong determined that Armstrong had not demonstrated that his
depression was disabling as of that earlier date.7 We reversed and held that Ruling
83-20 requires the ALJ to consult with a medical expert to determine if the onset of
the disability was earlier than the date of diagnosis.8 We should do the same in this
case.
There are two other differences between this case and Armstrong. First, the
ALJ in Armstrong assessed disability benefits and SSI in the same proceeding.
Lair-Del Rio had already been held disabled for SSI in 2001 when she sought past
disability benefits. Second, Armstrong had some physical impairments as well as
mental impairments. However, the opinion focuses on Armstrong's mental
disability and mentions the physical impairments in passing.9 Neither of these
differences suggest the cases should be decided differently.
The ALJ tried to support the finding that Lair-Del Rio was never disabled by
7
Id.
8
Id.
9
See id.
4
finding that she 'was capable of unsµilled worµ involving simple repetitive tasµs.'
That is contradicted by the medical records. Both Dr. Gorlicµ and Dr. Rocµman
reference Lair-Del Rio's inability to concentrate and to handle the stress of
worµing. These opinions focus on Lair-Del Rio's inability to function in any worµ
environment, not on her inability to perform certain types of worµ.
It was error for the ALJ to fail to consult an independent medical expert to
evaluate the full record in this case. Doing so would have enabled the ALJ to
determine whether to relate the later diagnoses bacµ to the earlier claimed onset
date as provided by Smith v. Bowen.10 A medical expert could review the record
and advise the ALJ on whether the record supports the conclusion that Lair-Del
Rio's bipolar disorder caused her to be disabled prior to June 30, 1999, or whether
her condition only became disabling at a later date.
10
849 F.2d 1222, 1225-26 (9th Cir. 1988).
5