Fred A. MALAK, Plaintiff-Appellant, v. Michael J. ASTRUE, Commissioner of the Social Security Administration, Defendant-Appellee, 246 F. App'x 482

MEMORANDUM The Appellant, Fred Malak, seeks reversal of the district court’s order affirming the Commissioner’s denial of social security disability benefits. Malak argues that the findings of the administrative law judge (“ALJ”) were not supported by substantial evidence. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. We review de novo the district court’s affirmance of the Commissioner’s decision. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir.2007). The decision of the Commissioner will be affirmed if free of legal error and supported by substantial evidence. Smolen v.

Chater, 80 F.3d 1273, 1279 (9th Cir.1996). Substantial evidence is “more than a mere scintilla, but less than a preponderance”; it is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Robbins v. Social Sec. Admin., 466 F.3d 880, 882 (9th Cir.2006). Where the evidence can reasonably support either affirming or reversing the decision, the judgment of the reviewing court may not be substituted for that of the Commissioner. Parra, 481 F.3d at 746.

Malak claims that he was disabled due to a heart condition prior to December 31, 1988 (the last date when he was covered by social security). Malak did not file his application for benefits until October of 1995. Because Malak waited so long to file his application many of the medical records detailing his medical condition in the 1980s had been lost or destroyed, and some of the remaining records were of questionable authenticity. Much of Malak’s case therefore depends on extrapolating his probable condition in 1988 from later medical examinations, as well as Malak’s own testimony.

The ALJ found that Malak “is of low credibility,” and gave “minimal weight to his testimony.” Malak argues that the ALJ’s adverse finding on credibility was not supported by substantial evidence. The ALJ gave a long list of reasons for doubting Malak’s credibility, some of which clearly cast doubt on Malak’s testimony. For example, Malak’s testimony as to his past job responsibilities was at odds with a vocational report which Malak had signed a few years earlier. The ALJ therefore gave “clear, convincing and specific reasons” for finding Malak not credible. Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir.2005).

The ALJ did not err in finding Malak not credible. Next Malak argues that the ALJ erred in holding that some of the records submitted by Malak were inauthentic. Because California law requires health care providers to retain medical records for only seven years, many of the records which might have supported Malak’s case were destroyed. However, Malak claimed to have obtained records from this period from his doctors. Some documents were undated and relied on Malak’s testimony to establish the date and the authenticity of the records.

Strict rules of evidence do not apply in this type of administrative proceeding. See 42 U.S.C. § 405. Nevertheless, the ALJ’s conclusion that these documents were not authentic, especially in light of Malak’s poor credibility, was supported by substantial evidence. The remaining records from 1987 and 1988 paint an incomplete picture of Malak’s condition at that time.

Noting that the burden was on Malak to prove a disabling medical condition, the ALJ concluded that these incomplete records from 1987 and 1988 were consistent with a moderate heart condition but did not prove that Malak was unable to do light work in 1988. This conclusion was supported by substantial evidence. Malak argues that the ALJ erred in relying upon the opinion of the medical expert, Dr. Mills, rather than on the opinions of numerous treating and examining physicians as to what his condition would have been in 1988. In particular, Malak relies on the assessment of Dr.

Abrahim who treated Malak from 1986 to 1989 and who completed a physical residual functional capacity (“RFC”) questionnaire in 1997 describing Malak’s medical problems. Malak correctly notes that the opinions of treating physicians generally are accorded more weight than the opinions of non-treating physicians. See Lester v. Chater, 81 F.3d 821, 830 (9th Cir.1995) (noting the hierarchy of treating physicians, examining physicians and non-examining physicians).

We have also explained that: “It is not necessary, or even practical, to draw a bright line distinguishing a treating physician from a non-treating physician. Rather, the relationship is better viewed as a series of points on a continuum reflecting the duration of the treatment relationship and the frequency and nature of the contact.” Benton ex rel. Benton v. Barnhart, 331 F.3d 1030, 1038 (9th Cir.2003) (quoting Ratio v. Sec’y, Dep’t of Health & Human Servs., 839 F.Supp. 1415, 1425 (D.Or.1993)). In the instant case, Dr.

Abrahim was a treating physician, but he had not treated Malak for eight years prior to making his evaluation. Moreover, on the first page of the RFC questionnaire there is a space to identify “the clinical findings and objective signs” of the patient’s impairments. Abrahim left this space blank, and the ALJ noted that Abrahim’s assessment was not supported by clinical findings. “The ALJ need not accept the opinion of any physician, including a treating physician, if that opinion is brief, conclusory, and inadequately supported by the clinical findings.” Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir.2002).

We cannot say that the ALJ erred in according Abrahim’s opinion minimal weight. Given a long hiatus between treatment and Abrahim’s opinion, the justification for according more weight to treating physicians (namely, that they have a better “opportunity to know and observe the patient as an individual,” Rodriguez v. Bowen, 876 F.2d 759, 761 (9th Cir.1989)) is significantly reduced and the importance of citing objective medical evidence is increased. The precedents, therefore, support the ALJ’s decision to accord less weight to Abrahim’s opinion given the facts in this case.

Malak further contends that the opinions of several other treating physicians, who treated him after 1988, should have been accorded greater weight. However, other than Abrahim, none of these physicians treated Malak in 1987 or 1988, and thus while their opinions were relevant they were necessarily speculative as to his condition in 1988. The opinions of these doctors were also conclusory and failed to cite specific documentation. Thus we cannot conclude that the ALJ erred in according little weight to the opinions of physicians who treated Malak after 1988.

Finally, a few other physicians, after examining Malak’s medical records, opined that Malak had a severe heart condition dating back to 1987 or 1988. The ALJ considered these opinions but accorded them little weight. Because they were non-examining physicians their opinions were not entitled to any greater weight than that of Dr. Mills. Although the ALJ relied heavily on the opinion of Dr. Mills, the ALJ’s ultimate conclusion was supported by substantial evidence. “Where evidence is susceptible of more than one rational

interpretation, it is the ALJ’s conclusion which must be upheld.” Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir.1982). Moreover, when “medical reports are inconclusive, ‘questions of credibility and resolution of conflicts in the testimony are functions solely of the Secretary.’ ” Id. (quoting Waters v. Gardner, 452 F.2d 855, 858 n. 7 (9th Cir. 1971)). In this case there was a great deal of medical opinion presented, including testimony from numerous physicians supporting Malak’s claim; nevertheless, we cannot say that the ALJ’s

interpretation of the overall evidence was irrational. Malak’s final argument is that the ALJ erred at “step five” of the analysis, in which the Commissioner has the burden of showing that the applicant was capable of performing some work. Specifically, Malak argues that the ALJ erred by asking hypothetical questions of the vocational expert which “ignored the opinions of treating physicians” as to Malak’s limitations.

However, because the ALJ justifiably rejected the opinions of the physicians whom Malak characterizes as treating physicians, the ALJ was not required to incorporate those opinions into the hypotheticals asked of the vocational expert. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3. . Because the parties are familiar with the factual and procedural history of this case, we do not recount it in detail here. . Dr.

Mills's testimony was not entirely consistent, and an ALJ is required to recontact a doctor if the doctor's report is ambiguous or insufficient for the ALJ to make a disability determination. 20 C.F.R. §§ 404.1512(e), 416.912(e). Although Malak does not raise this requirement with respect to Dr. Mills's testimony, the dissent would address this issue sua sponte because it is a purely legal issue and the pertinent record has been fully developed. Dissent Op.-.

We decline to do so, as Malak failed to put the government on notice of the need to address any potential discrepancies, the scope of the ALJ’s duty to explore these discrepancies, and the possible prejudice that resulted from any error. The panel has thus been deprived of both parties’ briefing and argument on this issue. This litigation has been ongoing for more than a decade, and even assuming there was error, it may nonetheless have been harmless. . The dissent questions the sufficiency of the evidence arguing that the ALJ "grossly mischaracterizes the record” in summarizing Dr.

Mills’s testimony (Dissent Op. at 487) and that the ALJ "largely prevented Dr. Mills from rendering an opinion as to the onset date based on all the relevant evidence.” Dissent Op. at 489. We disagree. The ALJ specifically noted that in Dr. Mills’s opinion Malak was disabled in 1988, but the ALJ concluded that this opinion was not supported by sufficient medical evidence. When the ALJ questioned Dr.

Mills about his opinion Mills acknowledged that there was no angiography which would demonstrate coronary artery disease and conceded: "I’m being theoretical----Everything I say is theoretical.” The record, therefore, supports the ALJ’s conclusion that Dr. Mills's opinion was not supported by sufficient evidence to prove a disability in 1988. Second, the dissent correctly points out that the ALJ was required to consult a medical expert to help determine the onset of Malak’s disability. The ALJ was careful to restrict the testimony of Dr. Mills to evidence the ALJ regarded as relevant and probative.

Reasonable people can disagree as to whether the ALJ should have permitted Dr. Mills greater leeway in testifying, or whether the ALJ should have been more careful to sort out apparent inconsistencies in the testimony given by Dr. Mills at the two hearings, but we cannot conclude that the ALJ's treatment of Dr. Mills constituted failure to properly consult with a medical advisor.