Opinion
NO. CV 15-8959-E
11-10-2016
MANUEL L. ESQUIBEL, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION
PROCEEDINGS
Plaintiff filed a complaint on November 17, 2015, seeking review of the Commissioner's denial of benefits. The parties consented to proceed before a United States Magistrate Judge on December 30, 2015. Plaintiff filed a motion for summary judgment on September 7, 2016. Defendant filed a motion for summary judgment on November 7, 2016. The Court has taken the motions under submission without oral argument. See L.R. 7-15; "Order," filed November 23, 2015. /// ///
BACKGROUND
Plaintiff asserted disability since April 14, 2010, based primarily on alleged mental impairments (Administrative Record ("A.R.") 37-42, 75, 186-89). An Administrative Law Judge ("ALJ") reviewed the medical record and heard testimony from Plaintiff and a vocational expert (A.R. 11-543). The ALJ found Plaintiff has severe "anxiety and affective disorders" but retains the residual functional capacity to perform his past relevant work, as well as other jobs existing in significant numbers in the national economy (A.R. 13-20). The ALJ deemed Plaintiff's contrary testimony not credible (A.R. 16-17). The Appeals Council considered additional evidence, but denied review (A.R. 1-4). Petitioner contends that the ALJ failed to state sufficient reasons for discounting Plaintiff's credibility.
The record reflects that Plaintiff began working at a full-time job in early 2014 (A.R. 205).
STANDARD OF REVIEW
Under 42 U.S.C. section 405(g), this Court reviews the Administration's decision to determine if: (1) the Administration's findings are supported by substantial evidence; and (2) the Administration used proper legal standards. See Carmickle v. Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner of Social Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012). 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 (1971) (citation and quotations omitted); see also Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006).
Where, as here, the Appeals Council considered additional evidence but denied review, the additional evidence becomes part of the record for purposes of the Court's analysis. See Brewes v. Commissioner, 682 F.3d at 1163 ("[W]hen the Appeals Council considers new evidence in deciding whether to review a decision of the ALJ, that evidence becomes part of the administrative record, which the district court must consider when reviewing the Commissioner's final decision for substantial evidence."; expressly adopting Ramirez v. Shalala, 8 F.3d 1449, 1452 (9th Cir. 1993)); Taylor v. Commissioner, 659 F.3d 1228, 1231 (2011) (courts may consider evidence presented for the first time to the Appeals Council "to determine whether, in light of the record as a whole, the ALJ's decision was supported by substantial evidence and was free of legal error"); Penny v. Sullivan, 2 F.3d 953, 957 n.7 (9th Cir. 1993) ("the Appeals Council considered this information and it became part of the record we are required to review as a whole"); see generally 20 C.F.R. §§ 404.970(b), 416.1470(b).
DISCUSSION
After consideration of the record as a whole, Defendant's motion is granted and Plaintiff's motion is denied. The Administration's findings are supported by substantial evidence and are free from /// /// /// material legal error. Plaintiff's contrary arguments are unavailing.
The harmless error rule applies to the review of administrative decisions regarding disability. See Garcia v. Commissioner, 768 F.3d 925, 932-33 (9th Cir. 2014); McLeod v. Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011).
An ALJ's assessment of a claimant's credibility is entitled to "great weight." Anderson v. Sullivan, 914 F.2d 1121, 1124 (9th Cir. 1990); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985). Where, as here, the ALJ finds that the claimant's medically determinable impairments reasonably could be expected to cause some degree of the alleged symptoms of which the claimant subjectively complains, any discounting of the claimant's complaints must be supported by specific, cogent findings. See Berry v. Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995); but see Smolen v. Chater, 80 F.3d 1273, 1282-84 (9th Cir. 1996) (indicating that ALJ must offer "specific, clear and convincing" reasons to reject a claimant's testimony where there is no evidence of malingering). An ALJ's credibility findings "must be sufficiently specific to allow a reviewing court to conclude the ALJ rejected the claimant's testimony on permissible grounds and did not arbitrarily discredit the claimant's testimony." See Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004) (internal citations and quotations omitted); see also Social Security Ruling 96-7p. As discussed below, the ALJ stated sufficient reasons for deeming Plaintiff's subjective complaints less than fully credible.
In the absence of an ALJ's reliance on evidence of "malingering," most recent Ninth Circuit cases have applied the "clear and convincing" standard. See, e.g., Burrell v. Colvin, 775 F.3d 1133, 1136-37 (9th Cir. 2014); Chaudhry v. Astrue, 688 F.3d 661, 670, 672 n.10 (9th Cir. 2012); Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012); see also Ballard v. Apfel, 2000 WL 1899797, at *2 n.1 (C.D. Cal. Dec. 19, 2000) (collecting earlier cases). In the present case, the ALJ's findings are sufficient under either standard, so the distinction between the two standards (if any) is academic.
The ALJ noted that Plaintiff resumed working at a full-time job in January of 2014, and that Plaintiff did so without claiming medical improvement as the reason for having resumed work (A.R. 11, 16-17). Plaintiff's employment record reflects full-time work with some overtime and double time, beginning in January of 2014 (A.R. 205). Later in 2014, Plaintiff reported to his psychiatrist that Plaintiff was "managing OK on new job" and was "reasonably satisfied" (A.R. 532-33). When a claimant performs substantial gainful activity, the claimant is not disabled. See, e.g. Keyes v. Sullivan, 894 F.2d 1053 (9th Cir. 1990); Honey v. Colvin, 2015 WL 5096410, at *2 (C.D. Cal. Aug. 28, 2015); 20 C.F.R. §§ 404.1520(b), 416.920(b). Plaintiff's demonstrated ability to work properly impugns Plaintiff's testimony that his mental symptoms have been of disabling severity. See, e.g., Bray v. Commissioner, 554 F.3d 1219, 1227 (9th Cir. 2009); cf. Blankenship v. Bowen, 874 F.2d 1116, 1121-22 (6th Cir. 1989) (recognizing that most mental impairments are progressive in nature), cited with approval in Morgan v. Sullivan, 945 F.2d 1079, 1082-83 (9th Cir. 1991).
The ALJ also stated that Plaintiff had been seeking full-time employment since 2011 (A.R. 17). The record contains numerous references to Plaintiff's searches for employment over an extended period of time (A.R. 390-91, 395, 398-401, 478). A disability claimant's search for employment during the period of claimed disability can undermine the claimant's credibility. See Copeland v. Bowen, 861 F.2d 536, 542 (9th Cir. 1988); Bray v. Commissioner of Social Security Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) (fact that a claimant has sought out employment weighs against a finding of disability); see also Ghanim v. Colvin, 763 F.3d 1154, 1165 (9th Cir. 2014) ("continued receipt" of unemployment benefits can cast doubt on a claim of disability); but see Webb v. Barnhart, 433 F.3d 683, 688 (9th Cir. 2005) ("That Webb sought employment suggests no more than that he was doing his utmost, in spite of his health, to support himself").
The ALJ also identified inconsistencies in Plaintiff's own statements (A.R. 17). For example, at the hearing Plaintiff denied having attended college during the period of claimed disability, even though Plaintiff told his psychiatrist in 2012 that Plaintiff then was attending college (A.R. 47, 392-93). Similarly, Plaintiff testified he had not used drugs since he was a youth in his 20's, and yet Plaintiff reported to his psychiatrist in 2010 that he then was using methamphetamine (when Plaintiff was 48 years old) (A.R. 45, 47, 408, 410). The ALJ properly could rely on these inconsistencies to discount Plaintiff's credibility. See Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005) ("In determining credibility, an ALJ may engage in ordinary techniques of credibility evaluation, such as considering . . . inconsistencies in claimant's testimony.").
The ALJ also observed that some of Plaintiff's daily activities appeared inconsistent with Plaintiff's claimed limitations (A.R. 17). The record supports this observation. Whereas Plaintiff claimed a disabling inability to get along with others, Plaintiff took public transportation, attended church, went to movies and shopped in stores, all during the period of claimed disability (A.R. 44, 231-32, 259, 290, 321-22). Inconsistencies between claimed incapacity and admitted activities properly can impugn a claimant's credibility. See, e.g., Molina v. Astrue, 674 F.3d at 1112 ("the ALJ may consider inconsistencies in the claimant's testimony or between the testimony and the claimant's conduct"); Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002) (inconsistency between claimant's testimony and claimant's actions supported rejection of claimant's credibility); Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999) (inconsistency between claimant's testimony and claimant's actions cited as a clear and convincing reason for rejecting claimant's testimony).
Finally, the ALJ expressly stated that Plaintiff's "allegations of severe symptoms are not supported by the clinical evidence" (A.R. 17). Although a claimant's credibility "cannot be rejected on the sole ground that it is not fully corroborated by objective medical evidence, the medical evidence is still a relevant factor. . . ." Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). Here, the ALJ properly could infer from the medical evidence that Plaintiff's mental problems were not as profound as Plaintiff asserts.
To the extent one or more of the ALJ's stated reasons for discounting Plaintiff's credibility may have been invalid, the Court nevertheless would uphold the ALJ's credibility determination under the circumstances presented. See Carmickle v. Commissioner, 533 F.3d 1155, 1162-63 (9th Cir. 2008) (despite the invalidity of one or more of an ALJ's stated reasons, a court properly may uphold the ALJ's credibility determination where sufficient valid reasons have been sated). In the present case, the ALJ stated sufficient valid reasons to allow this Court to conclude that the ALJ discounted Plaintiff's credibility on permissible grounds. See Moisa v. Barnhart, 367 F.3d at 885. The Court therefore defers to the ALJ's credibility determination. See Lasich v. Astrue, 252 Fed. App'x 823, 825 (9th Cir. 2007) (court will defer to Administration's credibility determination when the proper process is used and proper reasons for the decision are provided); accord Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1464 (9th Cir. 1995). /// /// /// /// /// /// /// /// /// /// ///
The Court does not determine herein whether Plaintiff's subjective complaints are credible. Some evidence suggests that those complaints may be credible. However, it is for the Administration, and not this Court, to evaluate the credibility of witnesses. See Magallanes v. Bowen, 881 F.2d 747, 750, 755-56 (9th Cir. 1989).
CONCLUSION
For all of the foregoing reasons, Plaintiff's motion for summary judgment is denied and Defendant's motion for summary judgment is granted.
The Court has considered and rejected each of Plaintiff's arguments. Neither Plaintiff's arguments nor the circumstances of this case show any "substantial likelihood of prejudice" resulting from any error allegedly committed by the Administration. See generally McLeod v. Astrue, 640 F.3d at 887-88 (discussing the standards applicable to evaluating prejudice). --------
LET JUDGMENT BE ENTERED ACCORDINGLY.
DATED: November 10, 2016.
/s/_________
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE