From Casetext: Smarter Legal Research

Lombardo v. Schweiker

United States Court of Appeals, Ninth Circuit
Dec 11, 1984
749 F.2d 565 (9th Cir. 1984)

Summary

holding that it was appropriate for the ALJ to discount an opinion rendered a year and a half after the date last insured

Summary of this case from Schalk v. Berryhill

Opinion

No. 83-5673.

Argued and Submitted June 8, 1984.

Decided December 11, 1984.

John P. Blumberg, Law Offices of Myron Blumberg, Long Beach, Cal., for plaintiff-appellant.

Gary Floerchinger, Asst. Regional Atty., Dept. of Health Human Services, San Francisco, Cal., for defendant-appellee.

Appeal from the United States District Court for the Central District of California.

Before CHOY and SKOPIL, Circuit Judges, and PRICE, District Judge.

The Honorable Edward Dean Price, United States District Judge for the Eastern District of California, sitting by designation.


Appellant Guiseppe Lombardo applied for Social Security benefits alleging disability as of October 1973 due to neck and back ailments. An administrative law judge (ALJ) found that Lombardo was entitled to disability benefits for the period from October 1973 to October 1974. After Lombardo requested a review, the Appeals Council vacated the decision and remanded the case.

On remand, another ALJ found that Lombardo was not entitled to disability benefits prior to September 30, 1976, the expiration date of his insured status. The ALJ concluded that Lombardo retained the residual functional capacity to engage in sedentary or light work. This became the final decision of the Secretary of Health and Human Services (Secretary) when the Appeals Council denied Lombardo's request for a review. Lombardo petitioned for judicial review, and the United States District Court for the Central District of California, adopting a magistrate's recommendation, granted the Secretary's motion for summary judgment. We affirm.

This court's scope of review is limited to whether substantial evidence supports the Secretary's decision. See Kornock v. Harris, 648 F.2d 525, 526 (9th Cir. 1980). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). — If the evidence is susceptible of more than one rational interpretation, this court must uphold the Secretary's decision. Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982).

In this case, the Secretary's findings of fact are supported by substantial evidence and must be affirmed. See Kornock v. Harris, 648 F.2d at 526; 42 U.S.C. § 405(g) (1982). The ALJ relied principally on the opinion of Dr. Cohen, who concluded that Lombardo's physical condition did not preclude him from working. Dr. Cohen's report was consistent with the findings of other examining physicians.

Lombardo argues that the ALJ erred in giving "little or no weight" to the testimony of the treating and family physician, Dr. Tavoularis, who concluded that Lombardo should not return to work. The ALJ, however, was not required to give Dr. Tavoularis' opinion conclusive effect even though he was the treating and family physician. See Montijo v. Secretary of Health and Human Services, 729 F.2d 599, 601 (9th Cir. 1984); 20 C.F.R. § 404.-1527 (1983); see also Alvarado v. Weinberger, 511 F.2d 1046, 1049 (1st Cir. 1975) ("The medical opinion of specialists may be entitled to greater weight than that of general practitioners.").

Lombardo next argues that the ALJ was required to give clear and convincing reasons for rejecting Dr. Tavoularis' opinion.

See Maounis v. Heckler, 738 F.2d 1032 (9th Cir. 1984); Coats v. Heckler, 733 F.2d 1338 (9th Cir. 1984). We need not decide, however, the issue of whether an ALJ must give clear and convincing reasons for rejecting a treating physician's testimony that is contradicted by other medical evidence. After an examination of the administrative record, we conclude that the ALJ here did set forth clear and convincing reasons for rejecting Dr. Tavoularis' testimony.

In the ALJ's detailed evaluation of the medical evidence, he noted that Dr. Tavoularis initially suspected a herniating disc at C5-6. The ALJ, however, rejected Dr. Tavoularis' observation, stating:

[R]eview of rather complete orthopedic and neurological evaluation by Dr. Koch in February 1979 (Ex. 45) establishes that while there was some spurring at C3-4, C4-5, and C5-6, there was no major neurologic abnormality such as disc herniation or nerve root compression but that the claimant had `sustained significant sprain and strain injury on September 15, 1973. The objective medical evidence thus fails to establish severe impairment capable of causing symptoms or limitations that would preclude either semi-sedentary or light work for any period approaching one year.

Admin. Rec. at 23. The ALJ later gave additional reasons for rejecting Dr. Tavoularis' opinion that claimant was disabled since September 1973, stating:

The preponderance of the substantial credible medical evidence discloses that since September 1973, the claimant has been and is capable of semi-sedentary or light work. This statement is supported by Dr. Cohen's findings and opinion of November 1974, and Dr. Koch's rather through review of February 1979. Opinion by the claimant's treating physician, Dr. Tavoularis, that the claimant has been disabled since September 1973 merits little or no weight since this opinion is not supported by the available clinical findings (see 20 CFR 404.1526 and 416.926).

We therefore conclude that the ALJ set forth sufficient reasons for rejecting the treating physician's testimony.

Lombardo also argues that the ALJ improperly disregarded the opinion of Dr. Verin, a psychiatrist who examined Lombardo on February 10, 1978, one and a half years after the expiration of Lombardo's insured status. Lombardo, however, had to show that he was disabled within the meaning of the Social Security Act before his coverage expired. Harmon v. Finch, 460 F.2d 1229, 1231 (9th Cir.), cert. denied, 409 U.S. 1063, 93 S.Ct. 571, 34 L.Ed.2d 515 (1972). The ALJ, therefore, reasonably evaluated the remoteness of Dr. Verin's examination in weighing the value of his opinion.

Lombardo's contention that the ALJ failed to consider the combined effect of his impairments is without merit. He does not substantiate this allegation. Furthermore, the summaries of the many physicians' reports suggest just the opposite; the physicians subjected Lombardo to rigorous and thorough examination. See Richardson v. Perales, 402 U.S. at 404, 91 S.Ct. at 1428.

Finally, Lombardo contends that res judicata effect should have been given to the finding of the first ALJ who decided that Lombardo was entitled to disability benefits for the period from October 1973 to October 1974. The decision of an ALJ is binding only if neither party requests a review of the decision. See 20 C.F.R. § 404.955(a) (1983). Lombardo, however, requested the Appeals Council to review this decision. The Appeals Council vacated the decision and remanded the case to another ALJ. Lombardo, therefore, may not now claim that the decision of the first ALJ has res judicata effect.

AFFIRMED.


Summaries of

Lombardo v. Schweiker

United States Court of Appeals, Ninth Circuit
Dec 11, 1984
749 F.2d 565 (9th Cir. 1984)

holding that it was appropriate for the ALJ to discount an opinion rendered a year and a half after the date last insured

Summary of this case from Schalk v. Berryhill

holding that it was appropriate for the ALJ to discount an opinion rendered a year and a half after the date last insured

Summary of this case from Bubna v. Saul

holding that it was appropriate for the ALJ to discount an opinion rendered a year and a half after the date last insured

Summary of this case from Christopher R. v. Saul

holding ALJ "reasonably evaluated the remoteness of [psychiatrist's] examination" that took place one and a half years after the expiration of the insured period when discounting the psychiatrist's opinion, because claimant "had to show that he was disabled within the meaning of the Social Security Act before his coverage expired"

Summary of this case from Allen S. v. Comm'r of Soc. Sec.

holding it was appropriate for the ALJ to reject a medical opinion rendered one-and-a-half years after the date last insured

Summary of this case from Duvall v. Comm'r of Soc. Sec. Admin.

holding that in rejecting an examining doctor's opinion, the ALJ "reasonably evaluated the remoteness of [the doctor's examination," which occurred "one and a half years after the expiration of [claimant's] insured status"

Summary of this case from Schuh v. Saul

holding that it was appropriate for the ALJ to discount an opinion rendered a year and a half after the date last insured

Summary of this case from Newman A. v. Berryhill

holding that a claimant "may not now claim that the decision of the first ALJ has a res judicata effect" upon remand

Summary of this case from Demaio v. Berryhill

finding no error where an ALJ disregarded the opinion of a psychiatrist who examined claimant one and a half years after the expiration of insured status

Summary of this case from Davidson v. Comm'r of Soc. Sec.

finding that ALJ set forth sufficient reasons for rejecting treating physician's opinion because no clinical findings supported the opinion

Summary of this case from Beltran v. Berryhill

rejecting claim that ALJ improperly disregarded opinion of psychiatrist who examined claimant after the relevant period

Summary of this case from Chavolla v. Colvin

rejecting the contention that the ALJ failed to consider the combined effect of the claimant's impairments, and observing that the ALJ's "detailed evaluation of the medical evidence" and "summaries of the many physicians' reports suggest just the opposite; the physicians subjected Lombardo to rigorous and thorough examination."

Summary of this case from Ireland v. Colvin

rejecting the claimant's argument that, on remand to the second ALJ, the first ALJ's finding that the claimant was entitled to receive benefits for a one-year period should have been given res judicata effect, because "[t]he decision of an ALJ is binding only if neither party requests a review of the decision," and the claimant had requested Appeals Council review

Summary of this case from Pauloo v. Social Security Administration

In Lombardo v. Schweiker, 749 F.2d 565 (9th Cir. 1984), the other case on which the Commissioner relies, the Ninth Circuit affirmed an ALJ decision that disregarded the opinion of a treating psychiatrist because he did not examine the claimant until more than a year after expiration of the claimant's insured status.

Summary of this case from Maryanne M. v. Saul
Case details for

Lombardo v. Schweiker

Case Details

Full title:GUISEPPE LOMBARDO, PLAINTIFF-APPELLANT, v. RICHARD S. SCHWEIKER, SECRETARY…

Court:United States Court of Appeals, Ninth Circuit

Date published: Dec 11, 1984

Citations

749 F.2d 565 (9th Cir. 1984)

Citing Cases

Baker v. Astrue

The ALJ therefore provided a clear and convincing reason, supported by substantial evidence, for rejecting…

Kelso v. U.S. Dept. of State

" Id. at 40, 71 S.Ct. 104. Moreover, courts have not hesitated to import the principles of vacatur into the…