Manuel L Esquibel v. Carolyn W Colvin, No. 2:2015cv08959 - Document 30 (C.D. Cal. 2016)
Court Description: MEMORANDUM OPINION by Magistrate Judge Charles F. Eick. Plaintiff's motion for summary judgment is denied and Defendant's motion for summary judgment is granted. (sp)
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Manuel L Esquibel v. Carolyn W Colvin Doc. 30 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 MANUEL L. ESQUIBEL, ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN, Acting ) Commissioner of Social Security, ) ) Defendant. ) ____________________________________) NO. CV 15-8959-E MEMORANDUM OPINION 17 18 PROCEEDINGS 19 20 Plaintiff filed a complaint on November 17, 2015, seeking review 21 of the Commissioner’s denial of benefits. The parties consented to 22 proceed before a United States Magistrate Judge on December 30, 2015. 23 Plaintiff filed a motion for summary judgment on September 7, 2016. 24 Defendant filed a motion for summary judgment on November 7, 2016. 25 The Court has taken the motions under submission without oral 26 argument. 27 /// 28 /// See L.R. 7-15; “Order,” filed November 23, 2015. Dockets.Justia.com 1 BACKGROUND 2 Plaintiff asserted disability since April 14, 2010,1 based 3 4 primarily on alleged mental impairments (Administrative Record 5 (“A.R.”) 37-42, 75, 186-89). 6 reviewed the medical record and heard testimony from Plaintiff and a 7 vocational expert (A.R. 11-543). 8 “anxiety and affective disorders” but retains the residual functional 9 capacity to perform his past relevant work, as well as other jobs An Administrative Law Judge (“ALJ”) The ALJ found Plaintiff has severe 10 existing in significant numbers in the national economy (A.R. 13-20). 11 The ALJ deemed Plaintiff’s contrary testimony not credible (A.R. 16- 12 17). 13 review (A.R. 1-4). 14 sufficient reasons for discounting Plaintiff’s credibility. The Appeals Council considered additional evidence, but denied Petitioner contends that the ALJ failed to state 15 16 STANDARD OF REVIEW 17 18 Under 42 U.S.C. section 405(g), this Court reviews the 19 Administration’s decision to determine if: (1) the Administration’s 20 findings are supported by substantial evidence; and (2) the 21 Administration used proper legal standards. 22 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 23 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner 24 of Social Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012). 25 Substantial evidence is “such relevant evidence as a reasonable mind 26 might accept as adequate to support a conclusion.” See Carmickle v. Richardson v. 27 1 28 The record reflects that Plaintiff began working at a full-time job in early 2014 (A.R. 205). 2 1 Perales, 402 U.S. 389, 401 (1971) (citation and quotations omitted); 2 see also Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). 3 4 Where, as here, the Appeals Council considered additional 5 evidence but denied review, the additional evidence becomes part of 6 the record for purposes of the Court’s analysis. 7 Commissioner, 682 F.3d at 1163 (“[W]hen the Appeals Council considers 8 new evidence in deciding whether to review a decision of the ALJ, that 9 evidence becomes part of the administrative record, which the district See Brewes v. 10 court must consider when reviewing the Commissioner’s final decision 11 for substantial evidence.”; expressly adopting Ramirez v. Shalala, 8 12 F.3d 1449, 1452 (9th Cir. 1993)); Taylor v. Commissioner, 659 F.3d 13 1228, 1231 (2011) (courts may consider evidence presented for the 14 first time to the Appeals Council “to determine whether, in light of 15 the record as a whole, the ALJ’s decision was supported by substantial 16 evidence and was free of legal error”); Penny v. Sullivan, 2 F.3d 953, 17 957 n.7 (9th Cir. 1993) (“the Appeals Council considered this 18 information and it became part of the record we are required to review 19 as a whole”); see generally 20 C.F.R. §§ 404.970(b), 416.1470(b). 20 21 DISCUSSION 22 23 After consideration of the record as a whole, Defendant’s motion 24 is granted and Plaintiff’s motion is denied. 25 findings are supported by substantial evidence and are free from 26 /// 27 /// 28 /// 3 The Administration’s 1 material2 legal error. Plaintiff’s contrary arguments are unavailing. 2 3 An ALJ’s assessment of a claimant’s credibility is entitled to 4 “great weight.” Anderson v. Sullivan, 914 F.2d 1121, 1124 (9th Cir. 5 1990); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985). 6 here, the ALJ finds that the claimant’s medically determinable 7 impairments reasonably could be expected to cause some degree of the 8 alleged symptoms of which the claimant subjectively complains, any 9 discounting of the claimant’s complaints must be supported by Where, as 10 specific, cogent findings. See Berry v. Astrue, 622 F.3d 1228, 1234 11 (9th Cir. 2010); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995); 12 but see Smolen v. Chater, 80 F.3d 1273, 1282-84 (9th Cir. 1996) 13 (indicating that ALJ must offer “specific, clear and convincing” 14 reasons to reject a claimant’s testimony where there is no evidence of 15 malingering).3 16 specific to allow a reviewing court to conclude the ALJ rejected the 17 claimant’s testimony on permissible grounds and did not arbitrarily 18 discredit the claimant’s testimony.” An ALJ’s credibility findings “must be sufficiently See Moisa v. Barnhart, 367 F.3d 19 20 21 22 23 24 25 26 27 28 2 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). 3 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. 4 1 882, 885 (9th Cir. 2004) (internal citations and quotations omitted); 2 see also Social Security Ruling 96-7p. 3 stated sufficient reasons for deeming Plaintiff’s subjective 4 complaints less than fully credible. As discussed below, the ALJ 5 6 The ALJ noted that Plaintiff resumed working at a full-time job 7 in January of 2014, and that Plaintiff did so without claiming medical 8 improvement as the reason for having resumed work (A.R. 11, 16-17). 9 Plaintiff’s employment record reflects full-time work with some 10 overtime and double time, beginning in January of 2014 (A.R. 205). 11 Later in 2014, Plaintiff reported to his psychiatrist that Plaintiff 12 was “managing OK on new job” and was “reasonably satisfied” (A.R. 532- 13 33). 14 claimant is not disabled. 15 (9th Cir. 1990); Honey v. Colvin, 2015 WL 5096410, at *2 (C.D. Cal. 16 Aug. 28, 2015); 20 C.F.R. §§ 404.1520(b), 416.920(b). 17 demonstrated ability to work properly impugns Plaintiff’s testimony 18 that his mental symptoms have been of disabling severity. 19 Bray v. Commissioner, 554 F.3d 1219, 1227 (9th Cir. 2009); cf. 20 Blankenship v. Bowen, 874 F.2d 1116, 1121-22 (6th Cir. 1989) 21 (recognizing that most mental impairments are progressive in nature), 22 cited with approval in Morgan v. Sullivan, 945 F.2d 1079, 1082-83 (9th 23 Cir. 1991). When a claimant performs substantial gainful activity, the See, e.g. Keyes v. Sullivan, 894 F.2d 1053 Plaintiff’s See, e.g., 24 25 The ALJ also stated that Plaintiff had been seeking full-time 26 employment since 2011 (A.R. 17). The record contains numerous 27 references to Plaintiff’s searches for employment over an extended 28 period of time (A.R. 390-91, 395, 398-401, 478). 5 A disability 1 claimant’s search for employment during the period of claimed 2 disability can undermine the claimant’s credibility. 3 Bowen, 861 F.2d 536, 542 (9th Cir. 1988); Bray v. Commissioner of 4 Social Security Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) (fact that 5 a claimant has sought out employment weighs against a finding of 6 disability); see also Ghanim v. Colvin, 763 F.3d 1154, 1165 (9th Cir. 7 2014) (“continued receipt” of unemployment benefits can cast doubt on 8 a claim of disability); but see Webb v. Barnhart, 433 F.3d 683, 688 9 (9th Cir. 2005) (“That Webb sought employment suggests no more than See Copeland v. 10 that he was doing his utmost, in spite of his health, to support 11 himself”). 12 13 The ALJ also identified inconsistencies in Plaintiff’s own 14 statements (A.R. 17). For example, at the hearing Plaintiff denied 15 having attended college during the period of claimed disability, even 16 though Plaintiff told his psychiatrist in 2012 that Plaintiff then was 17 attending college (A.R. 47, 392-93). 18 he had not used drugs since he was a youth in his 20’s, and yet 19 Plaintiff reported to his psychiatrist in 2010 that he then was using 20 methamphetamine (when Plaintiff was 48 years old) (A.R. 45, 47, 408, 21 410). 22 discount Plaintiff’s credibility. 23 676, 680 (9th Cir. 2005) (“In determining credibility, an ALJ may 24 engage in ordinary techniques of credibility evaluation, such as 25 considering . . . inconsistencies in claimant’s testimony.”). Similarly, Plaintiff testified The ALJ properly could rely on these inconsistencies to See Burch v. Barnhart, 400 F.3d 26 27 28 The ALJ also observed that some of Plaintiff’s daily activities appeared inconsistent with Plaintiff’s claimed limitations (A.R. 17). 6 1 The record supports this observation. Whereas Plaintiff claimed a 2 disabling inability to get along with others, Plaintiff took public 3 transportation, attended church, went to movies and shopped in stores, 4 all during the period of claimed disability (A.R. 44, 231-32, 259, 5 290, 321-22). 6 activities properly can impugn a claimant’s credibility. 7 Molina v. Astrue, 674 F.3d at 1112 (“the ALJ may consider 8 inconsistencies in the claimant’s testimony or between the testimony 9 and the claimant’s conduct”); Thomas v. Barnhart, 278 F.3d 947, 958-59 Inconsistencies between claimed incapacity and admitted See, e.g., 10 (9th Cir. 2002) (inconsistency between claimant’s testimony and 11 claimant’s actions supported rejection of claimant’s credibility); 12 Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999) (inconsistency 13 between claimant’s testimony and claimant’s actions cited as a clear 14 and convincing reason for rejecting claimant’s testimony). 15 16 Finally, the ALJ expressly stated that Plaintiff’s “allegations 17 of severe symptoms are not supported by the clinical evidence” (A.R. 18 17). 19 sole ground that it is not fully corroborated by objective medical 20 evidence, the medical evidence is still a relevant factor. . . .” 21 Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). 22 ALJ properly could infer from the medical evidence that Plaintiff’s 23 mental problems were not as profound as Plaintiff asserts. Although a claimant’s credibility “cannot be rejected on the Here, the 24 25 To the extent one or more of the ALJ’s stated reasons for 26 discounting Plaintiff’s credibility may have been invalid, the Court 27 nevertheless would uphold the ALJ’s credibility determination under 28 the circumstances presented. See Carmickle v. Commissioner, 533 F.3d 7 1 1155, 1162-63 (9th Cir. 2008) (despite the invalidity of one or more 2 of an ALJ’s stated reasons, a court properly may uphold the ALJ’s 3 credibility determination where sufficient valid reasons have been 4 sated). 5 to allow this Court to conclude that the ALJ discounted Plaintiff’s 6 credibility on permissible grounds. 7 at 885. 8 determination. 9 Cir. 2007) (court will defer to Administration’s credibility In the present case, the ALJ stated sufficient valid reasons See Moisa v. Barnhart, 367 F.3d The Court therefore defers to the ALJ’s credibility See Lasich v. Astrue, 252 Fed. App’x 823, 825 (9th 10 determination when the proper process is used and proper reasons for 11 the decision are provided); accord Flaten v. Secretary of Health & 12 Human Services, 44 F.3d 1453, 1464 (9th Cir. 1995).4 13 /// 14 /// 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 25 26 27 28 4 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). 8 1 CONCLUSION 2 3 For all of the foregoing reasons,5 Plaintiff’s motion for summary 4 judgment is denied and Defendant’s motion for summary judgment is 5 granted. 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 9 DATED: November 10, 2016. 10 11 /s/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 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 88788 (discussing the standards applicable to evaluating prejudice). 9
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