Anthony Thornton v. Michael J. Astrue, No. 5:2008cv00999 - Document 18 (C.D. Cal. 2009)
Court Description: MEMORANDUM OF DECISION by Magistrate Judge Andrew J. Wistrich. The Commissioner's decision is supported by substantial evidence and reflects application of the proper legal standards. Accordingly, defendant's decision is affirmed. IT IS SO ORDERED. (mz)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 13 14 15 16 ANTHONY THORNTON, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of the Social ) Security Administration, ) ) Defendant. ) _______________________________) Case No. EDCV 08-999 AJW MEMORANDUM OF DECISION 17 18 Plaintiff filed this action seeking reversal of the decision of the defendant, the Commissioner of the 19 Social Security Administration (the Commissioner ), denying plaintiff's application for supplemental 20 security income ( SSI ) benefits. The parties have filed a Joint Stipulation ( JS ) setting forth their 21 contentions with respect to each disputed issue. 22 Background 23 The parties are familiar with the procedural history of this case, which is summarized in the Joint 24 Stipulation. [See JS 2]. Plaintiff filed an application for SSI benefits on August 1, 2003, alleging that he 25 became disabled on December 1, 2001. Following an administrative hearing in October 2006, an 26 administrative law judge ( ALJ ) issued a partially favorable decision finding plaintiff disabled beginning 27 on September 1, 2005. In the process of calculating plaintiff s SSI benefits, a determination was made that 28 plaintiff was cohabiting with his wife during the period from September 1, 2005 through January 31, 2007, 1 and that her income rendered plaintiff ineligible to receive SSI benefits during that period. See 20 C.F.R. 2 ยง 416.1100-1160 (setting forth income and other eligibility requirements for SSI benefits). After plaintiff s 3 request for reconsideration was denied, plaintiff requested and received an administrative hearing before 4 a different ALJ. Plaintiff appeared during the hearing without a representative and testified in his own 5 behalf. [AR 160-190]. 6 In a written hearing decision dated May 25, 2007, the ALJ found that (1) plaintiff lived with his wife, 7 Patricia Thornton, from September 1, 2005 through January 31, 2007; (2) Ms. Thornton s income was 8 deemed to [plaintiff] during the relevant time frame ; (3) plaintiff was not a credible witness for the 9 reasons set forth in this decision ; and (4) Ms. Thornton s income rendered plaintiff ineligible for SSI 10 benefits from September 1, 2005 through January 31, 2007. [AR 17]. The Appeals Council granted 11 plaintiff s request for review and issued a new decision. The Appeals Council incorporated by reference 12 the ALJ s evaluation of the evidence and findings, discussed additional evidence, and, like the ALJ, found 13 that Ms. Thornton s income was deemed to [plaintiff] and rendered him ineligible for SSI benefits during 14 the period from September 1, 2005 through January 31, 2007. [See JS 2; AR 9-10, 14-18, 157-159]. 15 Standard of Review 16 The Commissioner s denial of benefits should be disturbed only if it is not supported by substantial 17 evidence or is based on legal error. Stout v. Comm r, Social Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 18 2006); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). Substantial evidence means more than 19 a mere scintilla, but less than a preponderance. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 20 2005). It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. 21 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)(internal quotation marks omitted). The court is 22 required to review the record as a whole and to consider evidence detracting from the decision as well as 23 evidence supporting the decision. Robbins v. Social Sec. Admin, 466 F.3d 880, 882 (9th Cir. 2006); 24 Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). Where the evidence is susceptible to more than 25 one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld. 26 Thomas, 278 F.3d at 954 (citing Morgan v. Comm r of Social Sec. Admin., 169 F.3d 595, 599 (9th 27 Cir.1999)). 28 /// 2 1 Discussion 2 Credibility evaluation 3 Plaintiff contends that the ALJ improperly rejected his testimony that he did not live with his wife 4 5 6 during the relevant period. [See JS 3-11]. In a section of his decision incorporated into the Appeals Council s decision, the ALJ wrote that plaintiff 7 testified he began receiving [SSI benefits] in March 2007. He stated that he has not lived 8 in his wife s house at 15058 Bonanza Road in Victorville, CA; he has just used her address 9 as his mailing address. He also used her father s address . . . as a mailing address. He has 10 lived with a friend in a trailer, and he has lived in his van. Using his wife s address and her 11 father s address was more convenient for the claimant in order to receive mail and pick up 12 his children. The claimant has lived in his van, on and off for 18 years. . . . 13 The claimant further testified that he is not divorced from Patricia [Thornton], but she left 14 him in 1991 and filed for divorce. The claimant did not respond to the divorce papers, and 15 both of them thought they were divorced until 2002. The claimant said Patricia never asked 16 for a default. . . . The claimant made out divorce papers in 2004, but he did not file them 17 until 2007. The claimant went to court in 2006 to have his child support payments stopped. 18 The claimant told the judge he had moved back home with Patricia, but he did not. He said 19 he had requested Patricia appear with him at the [social security] hearing, but she did not 20 want to take time off from work. 21 22 23 [AR 15-16]. The ALJ concluded that plaintiff was not a credible witness. He observed that plaintiff told Judge Anderson, the state court judge presiding over plaintiff s child support hearing, that 24 he was living with his wife and their minor child in the same home. The claimant either told 25 the truth when he said they resided in the same home; or he committed perjury a crime in 26 itself or made a material representation to a state [court] judge so that he would not have 27 to make child support payments. The child support agreement was modified based on the 28 claimant s now alleged misrepresentations. 3 1 [AR 16]. 2 The ALJ cited other substantial evidence that either was inconsistent with plaintiff s testimony or 3 failed to corroborate it. First, the ALJ observed that plaintiff submitted numerous documents showing that 4 his address was different from Patricia Thornton s address, but all of those documents predated plaintiff s 5 established onset date of September 1, 2005, and thus did not show where he lived during the relevant 6 period. [AR 16]. 7 Second, the ALJ noted that for the years 2004, 2005, and 2006, the claimant s name was listed in 8 the phone book as the primary resident at his wife s address. [AR 16 (citing AR 106-108)]. Plaintiff 9 testified that his name appeared in the telephone directory under his wife s address because he had a phone 10 and cable access installed there for his children while he continued to reside in his van, but that the phone 11 line had been disconnected since 2004. [See AR 106-110, 175-178] When the ALJ asked him for 12 documentation showing that the phone had been disconnected, plaintiff said he had none, and he could not 13 explain to the ALJ why the phone company would list a disconnected number in its own directory. [AR 177- 14 178]. 15 Third, the ALJ noted that plaintiff submitted a January 19, 2007 rental agreement between plaintiff 16 and Lenora Watson, along with a February 2007 letter from Ms. Watson stating that plaintiff was living in 17 his van in her back yard. The ALJ concluded that evidence was not material because plaintiff already had 18 been found to be living apart from Ms. Thornton, and to be eligible for SSI benefits, after January 31, 2007. 19 [AR 17]. 20 Fourth, the ALJ noted that plaintiff was still married to Ms. Thornton during the relevant period, and 21 that a petition to dissolve his marriage to Ms. Thornton was filed on January 25, 2007 in San Bernardino 22 County Superior Court. [AR 17, 83-84]. Plaintiff testified that he prepared divorce papers in 2004 but did 23 not file them, and later used the fact of his marriage to his benefit when he sought to terminate his child 24 support payments on the ground he was still married and had resumed living with his wife. [AR 185-186]. 25 In addition to incorporating the ALJ s rationale, the Appeals Council quoted a November 2, 2006 26 minute order issued by San Bernardino County Superior Court terminating the requirement that Anthony 27 Thornton [claimant] pay child support because the family is intact and residing in the same home. [AR 28 10, 156]. 4 1 The ALJ acknowledged that Ms. Thornton submitted a letter dated May 10, 2007 stating that 2 plaintiff had lived separately from myself for more than ten years since filing for divorce, and she had 3 provided occassional [sic] care and assistance to [plaintiff] during periods in which he was unable to care 4 for himself as in times following surgeries. [AR 112]. Ms. Thornton did not specify the frequency or 5 duration of the periods she said she gave plaintiff care and assistance. The ALJ said that he found Ms. 6 Thornton s letter unconvincing because there was no independent documentation that plaintiff lived 7 separately from her during the relevant time frame. [AR 17]. 8 In determining whether an SSI claimant has spent or retained excess resources, an ALJ must be free 9 to disregard self-serving statements that cannot be verified, and the ALJ s assessment of credibility must 10 be given great weight. Hudson v. Bowen, 849 F.2d 433, 434 (9th Cir. 1988); see Rashad v. Sullivan, 903 11 F.2d 1229, 1231 (9th Cir. 1990)(stating that an ALJ assessing the credibility of a claimant s testimony that 12 she attempted to file a prior application may disregard self-serving statements if they are unsupported by 13 objective evidence ). 14 Plaintiff contends that by acknowledging that he told the judge he had moved back home with 15 Patricia, but he did not, the ALJ explicitly confirmed that plaintiff did not live at his wife s residence 16 during the relevant time frame, and that having confirmed the truth of that fact, the ALJ punished 17 plaintiff for his past behavior regarding child support payments by unfairly denying SSI benefits. [JS 4 18 (underscore in original)]. 19 Plaintiff s contentions are baseless. When the ALJ said that plaintiff told the judge he had moved 20 back home with Patricia but he did not, he was merely summarizing plaintiff s testimony, not endorsing 21 its truthfulness. [AR 15-16]. The argument that the ALJ confirmed that plaintiff did not move back in with 22 his wife seems based on a careless if not deliberate misreading of the record. As the ALJ made 23 abundantly clear, he did not accept at face value plaintiff s self-serving testimony about his living 24 arrangements. The ALJ reasoned that plaintiff cannot have it both ways[;] either he has lived in the family 25 home, or he has not, as he now asserts. The claimant testified at the hearing before me that he did not tell 26 the truth to Judge Anderson. Based on his admitted representation to Judge Anderson, I am not inclined to 27 believe the claimant. [AR 16]. 28 Anderson or was lying to him, he was justified in concluding that plaintiff s willingness to lie either to him Even if the ALJ could not be certain whether plaintiff lied to Judge 5 1 or to Judge Anderson damaged plaintiff s reputation for truthfulness and revealed a lack of candor that 2 reflected poorly on his credibility as a whole. See Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 3 1997)(stating that [i]n weighing a claimant s crediblity, the ALJ may consider [the claimant s] reputation 4 for truthfulness, among other things); Fair v. Bowen, 885 F.2d 597, 604 n.5 (9th Cir. 1989)(stating that 5 the ALJ may employ ordinary techniques of credibility evaluation, and may take into account such factors 6 as whether a claimant has a reputation as a liar, or is found to have been less than candid in other aspects 7 of his testimony ).1 8 The additional evidence cited by the ALJ and the Appeals Council, such as plaintiff s 2004, 2005, 9 and 2006 telephone directory listings, the January 2007 rental agreement with Ms. Watson, February 2007 10 letter from Ms. Watson, and plaintiff s January 25, 2007 filing of a divorce petition, either failed to 11 corroborate plaintiff s self-serving testimony or tended to contradict it. See Hudson, 849 F.2d at 435 12 (holding that the ALJ permissibly relied to a large extent, although not entirely, on the lack of any objective 13 evidence corroborating the claimant s testimony that he no longer had excess resources because he spent 14 $4000 gambling in Reno, and on inconsistent statements the claimant made about the number of trips he 15 took to Reno). For all of these reasons, the Commissioner s credibility finding was supported by substantial 16 17 evidence and was free of legal error. 18 1 19 20 21 22 23 24 25 26 27 28 Plaintiff s argument that it would be unfair for the ALJ or this Court to deny plaintiff SSI benefits for the relevant period on account of an avowedly calculated, intentional misrepresentation under oath or affirmation to a state court judge, who relied on that misrepresentation to grant plaintiff the relief he sought, signals a lack of respect for the integrity of the judicial process. Beyond that, the possibility that plaintiff might prevail in this case by taking a factual position contrary to the one he successfully asserted in state court appears to implicate the principle of judicial estoppel, which is an equitable doctrine that precludes a party from gaining an advantage by asserting one position, and then later seeking an advantage by taking a clearly inconsistent position. Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778, 782 (9th Cir.2001); see, e.g., Rowland v. Astrue, 2009 WL 1704358, at *1 n.2 (C. D. Cal. 2009)(suggesting that the doctrine of judicial estoppel applied, but declining to rule on the issue)(citing Hamilton, 270 F.3d at 782); Capsopoulos ex rel. Capsopoulos v. Chater, 1996 WL 717456, at *1-*4 (N. D. Ill. 1996)(explaining that the doctrine of judicial estoppel applies where self-interest rather than truth determine[s] the argument of the day, and that its purpose is to protect the courts from being manipulated by chameleonic litigants who seek to prevail, twice, on opposite theories, and applying the doctrine as a matter of discretion to affirm the Commissioner s denial of benefits, even though the Commissioner did not do so)(quoting Maitland v. Univ. of Minnesota, 43 F.3d 357, 363 (8th Cir. 1994)). 6 1 Development of the record 2 Plaintiff contends that the ALJ had doubts about the truthfulness of plaintiff s testimony regarding 3 his residence between September 1, 2005 and January 31, 2007, yet failed to fully and fairly develop the 4 record regarding that issue, and instead based his decision on his disapproval of the plaintiff s past actions 5 and behavior. [See JS 11-14]. 6 The ALJ has a special duty to fully and fairly develop the record and to assure that the claimant's 7 interests are considered. Widmark v. Barnhart, 454 F.3d 1063, 1068 (9th Cir. 2006)(quoting Higbee v. 8 Sullivan, 975 F.2d 558, 561 (9th Cir. 1992)(per curiam) and Brown v. Heckler, 713 F.2d 441, 443 (9th 9 Cir.1983)). When a claimant is not represented by counsel, it is incumbent upon the ALJ to scrupulously 10 and conscientiously probe into, inquire of, and explore for all relevant facts. The ALJ must be especially 11 diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited. Vidal v. 12 Harris, 637 F.2d 710, 713 (9th Cir. 1981)(quoting Cox v. Califano, 587 F.2d 988, 991 (9th Cir. 1978)). The 13 ALJ's duty to develop the record further is triggered only when there is ambiguous evidence or when the 14 record is inadequate to allow for proper evaluation of the evidence. Mayes v. Massanari, 276 F.3d 453, 15 459-460 (9th Cir. 2001). 16 The ALJ s doubts about the reliability of plaintiff s testimony did not arise because the record was 17 too sparse or too ambiguous to allow him to make a reasoned determination, as plaintiff suggests, but rather 18 because the record contained substantial evidence indicating that plaintiff was not a credible witness. The 19 record, moreover, was adequately developed. During the hearing, the ALJ queried plaintiff as to whether 20 he wished to proceed without a representative. He summarized the procedural posture of the case and the 21 issues before him. He asked plaintiff both specific and open-ended questions seeking to elicit any 22 additional information plaintiff might wish to offer. The ALJ gave plaintiff the option of submitting 23 additional exhibits after the hearing. Plaintiff submitted additional documentary evidence to the Appeals 24 Council, which considered that evidence, made it a part of the record, and issued a new decision 25 incorporating the ALJ s analysis of the evidence and findings. [See AR 121-156, 157-159, 160-190]. 26 Accordingly, there is no merit to plaintiff s argument that the record was not fully and fairly developed. 27 Cf. Hudson, 849 F.2d at 435 (holding that the record did not support the claimant s assertion that a remand 28 was required because he was never given the opportunity to fully present evidence that his excess 7 1 resources were spent on living expenses, and observing that plaintiff would simply like a second 2 opportunity but had no entitlement to a remand where the denial of benefits was based on substantial 3 evidence). Conclusion 4 5 6 The Commissioner s decision is supported by substantial evidence and reflects application of the proper legal standards. Accordingly, defendant s decision is affirmed. 7 8 IT IS SO ORDERED. 9 10 11 12 November 5, 2009 ___________________________________ ANDREW J. WISTRICH United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8
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