                                                                            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                            NOT FOR PUBLICATION                              MAY 28 2010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
