Unpublished Disposition, 875 F.2d 318 (9th Cir. 1988)

MEMORANDUM^** 

Appellant, Aust H. Hampton, brought this action pursuant to section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g) (1982), to obtain judicial review of the final decision of the Secretary of Health and Human Services. The Secretary ruled that Hampton does not qualify for disability insurance benefits under Title II of the Social Security Act. 42 U.S.C. §§ 401 et seq. On May 9, 1988, the district court granted the Secretary's motion for summary judgment. Hampton timely appeals.

* Hampton filed his current application for disability insurance benefits on February 24, 1982 alleging an inability to work beginning in 1977 due to psychological and back problems.¹  The Secretary determined that Hampton was not disabled on or before December 31, 1979, the date on which he last met the disability insured status requirement of the Social Security Act. See 42 U.S.C. § 423(a) (1) (D).

Hampton is a 44-year-old male who earned a high school equivalency diploma. He served in the United States Air Force from 1961 until 1964 at which time he received an honorable discharge after suffering a nervous breakdown. Hampton's past work experience consists of employment as a post office clerk, maintenance man, and security guard. Appellant has not performed any substantial gainful activity since 1977, the date on which he alleges disability due to mental and back problems.

In the months of February and May 1975, appellant was admitted into the Veterans Administration (VA) Hospital because of marital difficulties. He was diagnosed after each discharge as suffering from a "depressive reaction" and, additionally, at the end of his May admission period, from a "passive aggressive personality." Upon discharge from both hospitalizations, Hampton was considered able to return to pre-admission activity.

In December 1976, he was involuntarily hospitalized after overdosing on propoxyphene. The hospital report indicated that Hampton had four previous VA Hospital admissions following suicide gestures and overdoses. The report also indicated that his behavior was manipulative and threatening. During this period of hospitalization, Hampton was diagnosed with "depressive neurosis" and a "passive aggressive personality." After a 72-hour hold, Hampton was released and was considered to be "fully capable of resuming pre-hospital activities" at the time of discharge.

During 1977, appellant was hospitalized twice due to complaints of depression, irritability, and sleeplessness. During his April stay, Hampton declined to utilize individual therapy offered to him. During his December stay, Thomas Horvath, M.D., described appellant's condition as "a continuation of a chronic life-long characterological depression" and described Hampton as "adept at manipulating the system and at getting his needs met." After each stay, Hampton was diagnosed as suffering from "depressive neurosis." Upon discharge from each of these hospitalizations, he was considered competent to return to pre-admission activity.

In May 1978, Hampton was hospitalized for complaints of depression relating to his work situation and the death of a father figure. He attempted suicide by a drug overdose three weeks prior to his admission. It was noted that appellant did not appear particularly depressed during his hospital stay.

In June and December 1978, he was again hospitalized for complaints of depression. During his June stay, a hospital report indicated that it was "questionable" whether appellant would be "gainfully employed for any permanent length of time." In December, appellant complained of suicidal urges. During each of these 1978 hospitalizations, Hampton was diagnosed as suffering from "depressive neurosis" and as having a "passive-aggressive personality." He was once again described by a treating physician as being manipulative. Psychometric testing revealed that Hampton was suffering from chronic depression. However, an electroencephalogram was reported as normal and there was no evidence of any organic lesion and only some mild right frontal dysfunction. On December 31, 1979, appellant's disability insured status expired.

In March 1981, Hampton was hospitalized after overdosing on Elavil. The hospital report indicated that Hampton had a "history of ongoing depressive mood with brief periods maybe of normothymic mood which ha [d] persisted for over two years." The report also indicated that appellant's level of functioning in his social spheres was poor, and that he was not capable of handling the stress of useful employment at that time.

In March 1982, Hampton requested admission to the VA Hospital for depression, decreased energy, and sleep disturbance. During his hospitalization, it was noted that his interest in treatment was "ambivalent," and that he "never seemed to be seriously interested in benefiting from his hospitalization in any way other than receiving medical treatment and medications for his depression."

A report from a private psychologist, Syrtiller M. Kabat, Ph.D., indicated that Kabat periodically treated Hampton from June through September 1982. In November 1982, Kabat authored an evaluation form which opined that Hampton's depression seriously affected his ability to function with respect to domestic, extramural, and social activities. Kabat also stated that appellant's mental illness would range from seriously affecting his ability to function to an extreme inability to function in such areas as sustaining work performance, coping with the pressures of ordinary work, and relating and getting along with fellow workers and supervisors.

On November 9, 1983 and October 29, 1986, appellant was again admitted to the VA hospital for depression.

II

In order to receive disability insurance benefits, appellant must prove both disability and insured status.²  42 U.S.C. § 423(a) (1) (A) and (D). In order to prove disability, he must show an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d) (1) (A). A person will be found disabled only if his "physical or mental impairment ... [is] of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d) (2) (A). For purposes of this definition, "impairment ... results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d) (3).

The claimant has the burden of proving disability within the meaning of the Social Security Act. Maounis v. Heckler, 738 F.2d 1032, 1034 (9th Cir. 1984). Once the claimant has demonstrated that he can no longer engage in his former occupation, it is incumbent upon the Secretary to show that there are other types of work that exist in the national economy which, considering his age, education, and work experience, the claimant is capable of doing. Id. The Secretary's findings are reviewed as to whether they are supported by substantial evidence and as to whether the Secretary has applied the proper legal standards. See 42 U.S.C. § 405(g); see also Maounis, 738 F.2d at 1034. Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Walker v. Mathews, 546 F.2d 814, 818 (9th Cir. 1976) (internal quotation omitted). However, the "court will set aside a denial of benefits ... if the Secretary's findings are based upon legal error or are not supported by substantial evidence in the record as a whole." Taylor v. Heckler, 765 F.2d 872, 875 (9th Cir. 1985) (emphasis omitted).

III

Appellant argues that he sustained his burden of proving disability prior to December 31, 1979, that the post-1979 evidence of mental deterioration is probative of his prior disability, and that the ALJ's credibility and motivation findings were legally improper and not supported by substantial evidence. Applying the appropriate legal standards, we conclude that: (1) the Secretary's determination of nondisability is supported by substantial evidence; (2) although post-1979 evidence of Hampton's condition is relevant to the assessment of disability, it does not support the conclusion that Hampton was disabled within the meaning of the Social Security Act; and (3) the ALJ's findings regarding appellant's credibility and motivation are supported by substantial evidence.

* The ALJ's rejection of Hampton's contention that he suffered from mental impairments is based upon the fact that the record contains few or no objective medical findings regarding appellant's mental status which could support a conclusion that he was no longer able to engage in his former occupation on or before December 1979.³  " [T]he critical date is the date of the onset of disability, not the date of diagnosis." Swanson v. Secretary of Health and Human Services, 763 F.2d 1061, 1065 (9th Cir. 1985) (original emphasis).

The record lacks sufficient evidence to support the existence of a disabling mental impairment prior to December 1979. The Secretary acknowledged that the evidence of record shows appellant was admitted to VA hospitals for depression on a number of occasions prior to December 31, 1979. However, the mere existence of an emotional disorder is not per se disabling; there must be "proof of the impairment's disabling severity." Sample v. Schweiker, 694 F.2d 639, 642-43 (9th Cir. 1982) (internal quotation omitted).

The hospital reports during the relevant period show that appellant had recurrent marital difficulties and complained of depression. No doctor or psychologist opined that Hampton was disabled (i.e., not capable of performing gainful activity) prior to December 31, 1979. In fact, following all pre-1977 (the date at which appellant was last employed) hospitalizations, Hampton was consistently considered able to return to pre-hospital activities. The only evidence that lends any support to appellant's contention of disability is a June 1978 hospital report authored by a medical doctor. The report stated that it was "questionable" whether " [Hampton] will be gainfully employed for any permanent length of time." However, this report only indicates that his disability was "questionable"; it does not mandate a conclusion of disability.

The evidence shows that Hampton was diagnosed as having a mental impairment prior to December 31, 1979, but it fails to establish that it was of disabling severity at that date. The absence of significant clinical findings of mental disability prior to December 31, 1979 provides substantial support for the ALJ's determination that Hampton was not disabled during his insured period. See Nyman v. Heckler, 779 F.2d 528 (9th Cir. 1985).

B

Appellant also argues that the ALJ erroneously failed to consider medical reports that contained post-1979 observations. Hampton is correct in stating that medical reports containing observations made after the period for disability are relevant to assess the claimant's disability. See Kemp v. Weinberger, 522 F.2d 967, 969 (9th Cir. 1975) (per curiam). Recently, this court in Smith v. Bowen, 849 F.2d 1222 (9th Cir. 1988), held that medical evaluations made after the expiration of a claimant's insured status are relevant to an evaluation of the pre-expiration condition and are, therefore, admissible. Id. at 1225.

It is clear from the record that the ALJ, in evaluating Hampton's disability claim, considered medical evidence from both before and after the expiration of Hampton's insured status. He acknowledged the medical reports of March 1981, in which a V.A. physician opined that Hampton was not capable of handling the stress of useful employment at that time, and of November 1982, in which a private physician indicated that Hampton had an inability to sustain work performance. The ALJ found, however, that appellant's condition appeared to have deteriorated since 1979. He concluded that the 1981 and 1982 medical reports, though lending support to Hampton's post-1979 disability, did not substantially support a conclusion of pre-1979 disability. Taking the record as a whole, we agree that the ALJ's determination of nondisability is substantially supported by the record.

C

The ALJ found that Hampton's allegations of disability were not credible with respect to the period prior to December 31, 1979, due to the absence of medical evidence of disability, appellant's admittedly poor memory for past events at the time of the hearing, his poor motivation and manipulative tactics, and secondary gain features. An ALJ's assessment of credibility should be given great weight. 42 U.S.C. § 405(g); see Nyman, 779 F.2d at 531.

In Branham v. Gardner, 383 F.2d 614 (6th Cir. 1967), the Sixth Circuit addressed the relationship between "motivation" and "credibility" in an individual who suffers from a mental impairment. The Branham court opined that "when the applicant is suffering from psychoneurosis, lack of motivation to work is irrelevant. In such an affliction, it is held that lack of such motivation to work is, in itself, one of the symptoms of the disorder from which the appellant admittedly suffers." Branham, 383 F.2d at 633.

We acknowledge that Hampton's depressive state may have adversely affected his level of motivation. However, notwithstanding Branham 's interpretation of "motivation," the ALJ properly considered the numerous comments concerning Hampton's manipulative behavior and secondary gain features in assessing Hampton's credibility. See Stone v. Finch, 434 F.2d 364, 365-66 (4th Cir. 1970) (evidence may support conclusion that lack of motivation is not result of psychological disorder). For example, Drs. Walter Massey, M.D. and Susan Blumenthal, M.D. both observed that appellant was manipulative and threatening. Lorraine Zappert, Ph.D., also opined that he was manipulative. The record further demonstrates that appellant relied on manipulative behavior in order to receive VA benefits throughout this period of time. In fact, in 1979 it was reported that Hampton seemed to feel much better during his hospitalization once he received one hundred percent service connected benefits but then became concerned about getting Social Security benefits and tried to manipulate the staff into appearing at a number of hearings for him.

Finally, Hampton implies that the ALJ's decision was improperly premised upon his failure to follow prescribed treatment. The ALJ, however, did not reject Hampton's disability claim because of his refusal to follow recommended treatment. The ALJ simply concluded, and we agree, that appellant has failed to present sufficient objective medical evidence to support a conclusion that his impairments were disabling within the meaning of the Social Security Act as of December 31, 1979.

AFFIRMED.