Opinion
For Norair Matossian, Plaintiff: Steven G Rosales, LEAD ATTORNEY, Law Office of Lawrence D Rohlfing, Santa Fe Springs, CA.
For Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant: Assistant U.S. Attorney LA-CV, LEAD ATTORNEY, AUSA - Office of U.S. Attorney, Civil Division, Los Angeles, CA; Assistant U.S. Attorney LA-SSA, LEAD ATTORNEY, Office of the General Counsel for Social Security Adm., San Francisco, CA; Scott J Borrowman, LEAD ATTORNEY, U.S. Attorney's Office, Social Security Administration, San Francisco, CA.
ORDER AFFIRMING DECISION OF ADMINISTRATIVE LAW JUDGE
HON. MICHAEL R. WILNER, UNITED STATES MAGISTRATE JUDGE.
I. SUMMARY OF RULING
Plaintiff Matossian challenges the denial of his application for Social Security benefits. The Administrative Law Judge (ALJ) found that Plaintiff was capable of performing his past work and denied benefits.
On appeal, Plaintiff challenges the ALJ's adverse credibility finding. The Court finds that the ALJ adequately identified Plaintiff's malingering behavior as an appropriate reason for rejecting his testimony. Substantial evidence supports that conclusion. Further, any error in setting forth the finding of malingering in the written decision was harmless. As a result, the Court affirms the ALJ's decision.
II. PLAINTIFF'S CONDITIONS AND PROCEEDINGS BELOW
Plaintiff applied for disability benefits based on various conditions. Following two administrative hearings, the ALJ found that several of Plaintiff's physical conditions constituted " severe impairments" as that term is used under federal regulations. (AR 399.)
The Court previously remanded the matter to the agency for reconsideration of a vocational expert's testimony. Matossian v. Astrue, No. CV 10-8340 MRW (C.D. Cal.).
The ALJ determined that Plaintiff had the residual functional capacity (RFC) to perform " light work" with additional limitations. (AR 399-400.) In establishing the RFC, the ALJ found that Plaintiff was not credible in describing his symptoms and limitations. (402-04.)
A vocational expert testified at the hearing that an individual with Plaintiff's RFC could perform his past work as a driver. (AR 422.) The ALJ concluded that Plaintiff was not disabled and denied benefits. (AR 406.)
III. DISCUSSION
A. Standard of Review
Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The ALJ's findings and decision must be upheld if they are supported by substantial evidence and are free of legal error. Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). A court must uphold the ALJ's conclusion even if the evidence in the record " is susceptible to more than one rational interpretation." Ludwig v. Astrue, 681 F.3d 1047, 1052 (9th Cir. 2012) (quotation omitted). If the evidence " can reasonably support either affirming or reversing the decision, " this Court " may not substitute [its] judgment for that of the Commissioner" or the ALJ. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007).
Error in a social security determination is subject to harmless error analysis. Ludwig, 681 F.3d at 1054. Reversal " is not automatic, but requires a determination of prejudice." Id. Among other things, a reviewing court must consider " the likelihood that the result would have been different" but for the error, and " the impact of the error on the public perception" of the proceeding. Shinseki v. Sanders, 556 U.S. 396, 411-12, 129 S.Ct. 1696, 173 L.Ed.2d 532 (2009). A federal court must conduct this harmless error analysis regardless of the parties' formulations of the claims on appeal: " in each case we look at the record as a whole to determine whether the error alters the outcome of the case." Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (emphasis added).
B. Adverse Credibility Determination
1. Facts and ALJ Decision
The ALJ received reports and medical records from four consulting physicians and mental health specialists. Several of these professionals openly doubted the legitimacy of Plaintiff's conditions and his performance during the exams.
A consulting psychologist, Dr. Talei, expressly accused Plaintiff of malingering during an exam. (AR 883-88.) The psychologist stated in a report that Plaintiff " present[ed] with inadequate effort" while testing, and that Plaintiff's response time to questions was " slow in [an] attempt to exaggerate symptoms." (AR 885.) Dr. Talei concluded that Plaintiff's test results were " invalid" because Plaintiff did not answer sufficient questions to finish the tests. (AR 886.) The psychologist twice referred to Plaintiff's " malingering behavior" during the examination. (AR 885-87.)
An orthopedic surgeon, Dr. Moazzaz, also doubted Plaintiff's performance on various tests during the evaluation. (AR 869-80.) Dr. Moazzaz stated that the examination was " somewhat limited due to lack of effort" by Plaintiff. (AR 874.) As a result, the physician concluded that Plaintiff's subjective complaints were " somewhat out of proportion to the objective findings." (Id.)
Plaintiff later testified at the administrative hearing that his pain and impairments severely limited his ability to work. (AR 35-43.) The ALJ found Plaintiff not to be credible and rejected this testimony. (AR 403-04.) The ALJ set forth a lengthy list of reasons for disbelieving Plaintiff.
In doing so, the ALJ did not explicitly find that Plaintiff was a malinger. However, the ALJ stated that Plaintiff's " deliberately poor performance" during the Talei exam " damages his credibility." (AR 404.) Moreover, the ALJ cited heavily to the portions of the Talei and Moazzaz evaluations that were critical of Plaintiff's effort during testing. (AR 402-03.) In doing so, the ALJ repeated Dr. Talei's observation that Plaintiff's actions were " consistent with malingering behavior. (AR 403.)
2. Relevant Law
Certain disability decisions require an evaluation of a claimant's subjective symptomatic complaints. An ALJ may not " arbitrarily discredit a claimant's testimony." Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002). If the ALJ determines that (a) there is objective medical evidence of an underlying impairment that reasonably could cause the alleged pain or symptoms and (b) " there is no evidence of malingering, the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear, and convincing reasons for doing so." Garrison v. Colvin, 759 F.3d 995, 1014-15 (9th Cir. 2014) (quotation omitted). " The ALJ must state specifically which symptom testimony is not credible and what facts in the record lead to that conclusion." Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996).
When an ALJ makes an " explicit finding of malingering, " there is no need for the ALJ to provide additional support for an adverse credibility finding. Taylor v. Comm'r of Soc. Sec. Admin., 659 F.3d 1228, 1234 (9th Cir. 2011); Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006) (" a finding of malingering based on affirmative evidence" relieves ALJ of obligation of stating clear and convincing reasons regarding credibility); Wall v. Astrue, 561 F.3d 1048, 1070 (10th Cir. 2009) (ALJ " clearly and affirmatively linked his adverse determination of Claimant's credibility to substantial record evidence indicating Claimant engaged in malingering and misrepresentation").
Even when the ALJ does not make an outright malingering finding, the clear-and-convincing-reason standard " does not apply [ ] when there is affirmative evidence that the claimant is malingering." Carmickle v. Comm'r Soc. Sec. Admin., 533 F.3d 1155, 1160 (9th Cir. 2008) (emphasis added); Merillat v. Comm'r of Soc. Sec. Admin., 350 F.App'x 163, 166 (9th Cir. 2009) (" Affirmative evidence of malingering supports an adverse credibility finding."); McLavey v. Astrue, 325 F.App'x 593, 594 (9th Cir. 2009) (" The ALJ's adverse credibility determination was supported by substantial evidence that McLavey was malingering.")
3. Analysis
Plaintiff claims that there was " simply no evidence of malingering here, " as " [a]ll evidence of malingering has been rejected by the objective medical evidence." (Docket # 22 at 11.) As a result, Plaintiff expends a great deal of energy arguing that the ALJ failed to identify sufficiently clear and convincing reasons in the written decision to reject Plaintiff's testimony regarding his symptoms.
That's not a fair reading of either the evidence in the case or the ALJ's decision. The Court concludes that the ALJ adequately found that Plaintiff was a malinger, and that this determination was adequately supported by substantial evidence. To be sure, the ALJ did not expressly state " Plaintiff is a malinger" in the decision. But, the ALJ certainly linked Plaintiff's " deliberately poor performance" at the Talei exam to Plaintiff's lack of credibility. (AR 404.) Moreover, elsewhere in the decision, the ALJ acknowledged Plaintiff's " malingering behavior" and lack of " full effort" during testing with Drs. Talei and Moazzaz. (AR 402-03.) The clear takeaway from the written decision is that the ALJ disbelieved Plaintiff because of the reports of misconduct -- from two doctors independently evaluating different aspects of Plaintiff's claims -- during testing. Under settled Ninth Circuit law, the ALJ was not obliged to go further in rejecting Plaintiff's testimony. Taylor, 659 F.3d at 1234; Robbins, 466 F.3d at 883.
Even if the ALJ did not affirmatively conclude that Plaintiff was a malingerer, the proof of his sham test results is likely enough to warrant affirmance of the ALJ's decision. As noted above, the reports of two specialists in different fields emphasized significant deficiencies with Plaintiff's performance during testing. On appellate review, the Court must accept that a " rational interpretation" interpretation of that evidence " can reasonably support" affirming the decision based on Plaintiff's malingering. Ludwig, 681 F.3d at 1052; Parra, 481 F.3d at 746. And considerable Ninth Circuit authority suggests that the mere presence of that evidence and its consideration by an ALJ -- whether or not the ALJ then articulated a finding of malingering -- is enough to short-circuit the adverse credibility analysis. Carmickle, 533 F.3d at 1160; McLavey, 325 F.App'x at 594.
Plaintiff offers no explanation or counter-argument to the clear statements of his inadequate performance during the exams. On this basis, the Court cannot credit Plaintiff's unsupported statement that there was no proof of malingering before the agency.
Finally, if it was error for the ALJ not to label Plaintiff as a capital-M " Malingerer" in the written decision, the Court is not convinced that Plaintiff was prejudiced by that error. The Court will not remand the matter for calculation of benefits, as there is " serious doubt as to whether Claimant is, in fact, disabled" as a result of the specialists' test results. Burrell v. Colvin, 775 F.3d 1133, 2014 WL 7398892 at *6 (9th Cir. 2014). Instead, if the matter were to be remanded, it would be on an " open record." Id. Yet, given the substance and clear import of the ALJ's written decision, there is no likelihood of a different result on remand on that record. Sanders, 556 U.S. at 411-12. Any defect in drafting the written decision was so innocuous that it could not have " alter[ed] the outcome" of Plaintiff's application. Molina, 674 F.3d at 1115. The ALJ's error here -- if any -- was harmless. Remand for more proceedings is unnecessary.
Because the proof of malingering and the ALJ's conclusions were so strong, the Court declines to take up the adequacy of the numerous additional reasons that the ALJ advanced to support the adverse credibility determination.
IV. CONCLUSION
The ALJ's denial of Plaintiff's application for disability benefits was supported by substantial evidence in the record and contained no legal error. Therefore, the Court AFFIRMS the decision.
IT IS SO ORDERED.
JUDGMENT
It is the judgment of this Court that the decision of the Administrative Law Judge is AFFIRMED. Judgment is hereby entered in favor of Defendant.