Valentine v. Colvin, No. 2:2014cv00393 - Document 15 (E.D. Wash. 2015)
Court Description: ORDER Denying 12 Plaintiff's Motion for Summary Judgment and Granting 13 Defendant's Motion for Summary Judgment. Case closed. Signed by Senior Judge Fred Van Sickle. (CV, Case Administrator)
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Valentine v. Colvin Doc. 15 1 2 3 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 4 5 NICOLE E. VALENTINE, CV-14-393-FVS 6 Plaintiff, 7 8 9 10 11 12 ORDER DENYING THE PLAINTIFF’S SUMMARY JUDGMENT MOTION AND GRANTING THE DEFENDANT’SUMMARY JUDGMENT MOTION v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. 13 14 15 16 17 THIS MATTER comes before the Court without oral argument based upon the parties’ cross motions for summary judgment. Plaintiff Nicole E. Valentine is 18 19 20 21 represented by Dana Madsen. The defendant is represented by Nicole Jabaily. JURISDICTION 22 23 24 25 On September 7, 2011, Nicole E. Valentine applied for Title XVI supplemental security income (“SSI”). U.S.C. §§ 1381-1383f; 20 C.F.R. Part 416. 42 The Social 26 27 1 Dockets.Justia.com Security Administration (“SSA”) denied her initial 1 2 application for benefits, together with her request for 3 reconsideration. She asked for, and was granted, a 4 hearing before an administrative law judge (“ALJ”). The 5 6 ALJ issued an unfavorable decision. 7 attorney requested the Appeals Council to review the 8 ALJ’s decision. Ms. Valentine’s On October 28, 2014, the Appeals Council 9 10 decided not to do so. 11 became the final decision of the Commissioner. 12 At that point, the ALJ’s decision 20 C.F.R. § 416.1400(a)(5). Ms. Valentine commenced this action on December 9, 2014. 42 U.S.C. §§ 405(g), 1383(c). 13 14 15 Both she and the Commissioner move for summary judgment. 16 BACKGROUND 17 Nicole E. Valentine was born on August 22, 1988. 18 19 20 42.) (TR She dropped out of high school (TR 43), and, at age 16, she married a 40 year old man. (TR 19.) He died 21 22 approximately five years later. Since then, she has 23 lived with boyfriends. (TR 48-49, 294.) She has yet to 24 obtain a high school diploma or pass the General 25 26 27 Educational Development (“GED”) tests, though she has 2 studied for the latter and hopes to pass them. (TR 43.) 1 2 Lack of education is not the only challenge she faces. 3 Body weight is another. Her ratio of weight to height is 4 unhealthy, something she recognizes. (TR 282.) 5 6 At the administrative hearing, Ms. Valentine 7 testified she suffers from physical impairments. 8 She said she experiences significant pain in her feet, legs, 9 10 and back. 11 She cannot stand very long, walk very far, or climb many 12 steps. (TR 45.) (TR 45-46.) She says the pain is disruptive. When she is grocery shopping, she 13 14 15 16 must sit in an electric cart. (TR 46.) She finds it difficult to perform basic household tasks (TR 48), and she has been unable to hold a job. (TR 44.) 17 18 19 20 Ms. Valentine also testified she suffers from mental impairments. She experiences nightmares, and she finds it difficult to sleep. (TR 47.) In addition, she 21 22 suffers from acute depression and anxiety. Id. Among 23 other things, these impairments have impeded her ability 24 to pass the GED tests. (TR 43.) Finally, she suffers 25 26 27 from severe panic attacks. (TR 47, 48.) 3 ALJ’S DECISION 1 A person is disabled “if [s]he is unable to engage in 2 3 any substantial gainful activity by reason of any 4 medically determinable physical or mental impairment 5 6 which can be expected to result in death or which has 7 lasted or can be expected to last for a continuous period 8 of not less than twelve months.” 42 U.S.C. § 9 10 1382c(a)(3)(A). 11 process for evaluating a disability claim. 12 416.920(a)(4). The SSA has established a five-step 20 C.F.R. § If, at any step, an ALJ can determine the 13 14 15 16 claimant is disabled (or not disabled), the ALJ will do so. Id. In that event, the ALJ will not proceed to the next step. Id. The process is complete. 17 18 19 20 A. Step One At step one, Ms. Valentine had to show she is not engaged in “substantial gainful activity.” 20 C.F.R. § 21 22 404.1520(a)(4)(i). The term “[s]ubstantial gainful 23 activity means work that . . . (a) [i]nvolves doing 24 significant and productive physical or mental duties; and 25 26 27 (b) [i]s done (or intended) for pay or profit.” 4 20 C.F.R. § 416.910. The ALJ found Ms. Valentine has not 1 2 engaged in any substantial gainful activity since the 3 date upon which she applied for benefits, viz., September 4 7, 2011. (TR 14.) 5 6 B. Step Two 7 At step two, Ms. Valentine had to show she has “a 8 severe medically determinable physical or mental 9 10 impairment that meets the duration requirement in § 11 416.909, or a combination of impairments that is severe 12 and meets the duration requirement[.]” 20 C.F.R. § 13 14 15 16 416.920(a)(4)(ii). An impairment is “severe” if it “significantly limits” the claimant’s “physical or mental ability to do basic work activities.” 20 C.F.R. § 17 18 19 20 416.920(c). The ALJ had no trouble finding Ms. Valentine suffers from a number of severe mental impairments, viz., depressive disorder, anxiety disorder, personality 21 22 disorder, and marijuana abuse. (TR 14.) Ms. Valentine’s 23 alleged physical impairments were another matter. 24 Although the ALJ acknowledged she experiences pain, the 25 26 27 ALJ found the pain does not significantly limit her 5 ability to engage in basic work activities. As a result, 1 2 the ALJ concluded she does not suffer severe physical 3 impairments. (TR 15.) 4 C. Step Three 5 At step three, the ALJ considered whether Ms. 6 7 8 Valentine’s impairments are so severe she is conclusively presumed to be disabled. See Reddick v. Chater, 157 F.3d 10 715, 721 (9th Cir.1998). Resolution of the issue turns 11 upon whether Ms. Valentine has any impairment, or 9 12 combination of impairments, that equals an impairment 13 14 15 16 that is listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. §§ 416.920(a)(iii), 416.925(a). See Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1194 (9th 17 18 Cir.2004). SSA regulations state: 19 The Listing of Impairments (the listings) is in 20 appendix 1 of subpart P of part 404 of this 21 chapter. 22 the major body systems impairments that . . . 23 [the SSA considers] to be severe enough to 24 prevent an individual from doing any gainful 25 activity, regardless of his or her age, 26 education, or work experience. 27 For adults, it describes for each of 6 20 C.F.R. § 416.925(a). “When a claimant meets or equals 1 2 a listing, ‘he is presumed unable to work and is awarded 3 benefits without a determination whether he actually can 4 perform his own prior work or other work.’” Kennedy v. 5 6 Colvin, 738 F.3d 1172, 1176 (9th Cir.2013) (quoting 7 Sullivan v. Zebley, 493 U.S. 521, 532, 110 S.Ct. 885, 107 8 L.Ed.2d 967 (1990)). The claimant bears the burden of 10 proof at step three. See, e.g., Molina v. Astrue, 674 11 F.3d 1104, 1110 (9th Cir.2012). 9 12 In this instance, the ALJ decided Ms. Valentine has not demonstrated the 13 14 15 16 existence of either an impairment, or a combination of impairments, that equals an impairment that is listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Consequently, 17 18 19 20 the ALJ concluded she failed to establish a conclusive presumption of disability. D. Step Four 21 22 At step four, the ALJ evaluated whether Ms. Valentine 23 can perform her “past relevant work” given her “residual 24 functional capacity.” 20 C.F.R. § 416.920(a)(4)(iv). 25 26 27 The SSA defines "past relevant work" as work that “was 7 done within the last 15 years, lasted long enough for you 1 2 to learn to do it, and was substantial gainful activity.” 3 20 C.F.R. § 416.965(a). Ms. Valentine’s residual 4 functional capacity (“RFC”) is the most she can do in a 5 6 work setting despite her physical and mental limitations. 7 20 C.F.R. § 416.945(a)(1). 8 In assessing Ms. Valentine’s RFC, the ALJ had to consider “all of the relevant medical 9 10 and other evidence.” 11 other things, the ALJ considered Ms. Valentine’s 12 20 C.F.R. § 404.1545(a)(3). Among testimony, the records that were admitted into evidence 13 14 15 16 (which included the observations of a number of mental health professionals and health care providers), and the opinions of a non-examining medical expert. (TR 31-34.) 17 18 The ALJ found: 19 [T]he claimant has the residual functional 20 capacity to perform a full range of work at all 21 exertional levels but with the following 22 nonexertional limitations: 23 understand, remember, and carryout simple, 24 routine, and repetitive tasks/instructions 25 involving up to three step commands and well 26 learned complex tasks; she should have no 27 8 she would be able to interaction with the public; could have only 1 occasional and superficial interaction with 2 coworkers; and would need additional time 3 (defined as 10% more than the average employee) 4 to adapt to changes in the work setting or 5 routine. 6 7 8 (TR 17.) This is Ms. Valentine’s RFC. Having made this determination, the ALJ turned to her “past relevant 9 10 work.” 11 is unable to perform her past relevant work given her 12 RFC. 20 C.F.R. § 404.1565(a). (Tr. 22.) She found Ms. Valentine Thus, the ALJ moved to step five. 13 14 15 16 E. Step Five At step five, the burden shifts to the commissioner to provide “evidence that demonstrates that other work 17 18 19 20 exists in significant numbers in the national economy that [Ms. Valentine] can do, given [her] residual functional capacity and vocational factors.” 20 C.F.R. § 21 22 23 24 404.1560(c)(2). As a general rule, there are two ways the Commissioner may satisfy her burden: “(1) by the testimony of a vocational expert, or (2) by reference to 25 26 27 the Medical–Vocational Guidelines at 20 C.F.R. pt. 404, 9 subpt. P, app. 2.” Lounsburry v. Barnhart, 468 F.3d 1 2 1111, 1114 (9th Cir.2006). At the hearing on June 4, 3 2013, the ALJ considered the testimony of a vocational 4 expert. The ALJ asked her whether jobs exist in the 5 6 national economy for an individual with Ms. Valentine’s 7 profile. 8 (TR 22.) the affirmative. The vocational expert responded in She said Ms. Valentine could work as a 9 10 fish cleaner, a dining room attendant, or a laundry 11 worker. 12 (TR 23.) The ALJ credited the vocational expert’s testimony: 13 14 [C]onsidering the claimant's age, education, 15 work experience, and residual functional 16 capacity, the claimant is capable of making a 17 successful adjustment to other work that exists 18 in significant numbers in the national economy. 19 A finding of "not disabled" is therefore 20 appropriate . . . . 21 22 23 (TR 23.) STANDARD OF REVIEW 24 A district court has “power to enter, upon the 25 26 27 pleadings and transcript of the record, a judgment 10 affirming, modifying, or reversing the decision of the 1 2 Commissioner of Social Security, with or without 3 remanding the cause for a rehearing.” 42 U.S.C. § 4 405(g). However, review is limited. “The findings of 5 6 the Commissioner of Social Security as to any fact, if 7 supported by substantial evidence, shall be 8 conclusive[.]” Id. As a result, the Commissioner’s 9 10 decision “will be disturbed only if it is not supported 11 by substantial evidence or it is based on legal error.” 12 Green v. Heckler, 803 F.2d 528, 529 (9th Cir.1986). 13 14 15 16 “Substantial evidence” means more than a mere scintilla, . . . but less than a preponderance.” Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 576 (9th 17 18 19 20 Cir.1988) (internal punctuation and citations omitted). PLAINTIFF’S ALLEGATIONS Ms. Valentine does not challenge the ALJ’s Step Two 21 22 finding regarding her physical impairments. (Plaintiff’s 23 Motion for Summary Judgment at 9.) By contrast, Ms. 24 Valentine does challenge the ALJ’s formulation of her 25 26 27 residual functional capacity. 11 According to Ms. Valentine, the ALJ improperly discounted her description 1 2 of her psychological symptoms. Not only that, but also 3 Ms. Valentine alleges the ALJ failed to give adequate 4 weight to the observations and opinions of the health 5 6 care providers and mental health professionals who either 7 examined her or reviewed her medical records. 8 Given the alleged flaws in the ALJ’s assessment of the evidence, 9 10 Ms. Valentine urges the Court to reverse the ALJ’s 11 unfavorable decision and order the Social Security 12 Administration to pay SSI benefits. 13 14 15 16 PSYCHOLOGICAL/MEDICAL EVIDENCE Ms. Valentine was evaluated by Mahlon Dalley, Ph.D., a psychologist, on two occasions. The first evaluation 17 18 19 20 took place on June 3, 2011. Although Ms. Valentine “did not present with depressive features” (TR 179), the psychological tests Dr. Dalley administered that day 21 22 indicated “many difficulties with depression and 23 anxiety.” Id. At the conclusion of the 2011 evaluation, 24 Dr. Dalley issued a number of recommendations. Among 25 26 27 other things, he wrote, “[F]eatures of Ms. Valentine's 12 depression, panic attacks, and personality disorder are 1 2 likely to interfere with her ability to initiate and be 3 successful in a normal employment position; therefore, it 4 is estimated that she will be work impaired for a 6 to 9 5 6 7 8 months time period.” (TR 184.) Dr. Dalley’s 2011 report was reviewed separately by psychologists Michael Regets, Ph.D., and Leslie 9 10 Postovoit, Ph.D. 11 concluded Ms. Valentine suffers from a number of moderate 12 limitations. (TR 55, 65.) Both psychologists For example, both psychologists concluded 13 14 15 16 her “ability to understand and remember detailed instructions” is “[m]oderately limited.” (TR 61, 72.) Similarly, both psychologists concluded Ms. Valentine’s 17 18 19 20 “ability to perform activities within a schedule, maintain regular attendance, and be punctual” is “[m]oderately limited.” (TR 62, 71.) 21 22 Dr. Dalley conducted a second evaluation of Ms. 23 Valentine on March 3, 2012, i.e., approximately nine 24 months after the first evaluation. (It does not appear 25 26 27 Drs. Regets and Postovoit saw the results of the second 13 evaluation.) As he had during 2011, Dr. Dalley 1 2 administered a number of psychological tests. 3 results were troubling. The Ms. Valentine’s performance on 4 the tests indicated malingering, which was Dr. Dalley’s 5 6 diagnosis. 7 Ms. Valentine, but only in the event she became willing 8 (TR 201-03.) He recommended a revaluation of to give more realistic responses to the questions on the 9 10 11 12 various psychological tests. Id. at 203. During 2012, Ms. Valentine was examined on a number of occasions by health care providers at the Community 13 14 15 16 Health Association of Spokane (“CHAS”). reported depression and anxiety. She consistently (TR 277, 282, and 294.) On two occasions, she reported ankle and back pain. (TR 17 18 19 20 277, 282.) Health care providers accepted her reports of depression and anxiety, id., but they were unable to substantiate her reports of ankle and back pain. (TR 21 22 284.) Her last appointment during 2012 took place on 23 October 12th. 24 motivation and mood [had] improved. At that point, Ms. Valentine felt “her 25 26 27 14 (TR 294.) At the ALJ’s request, Ms. Valentine’s psychological 1 2 records were reviewed by Kent Layton, Psy.D. 3 testified at the administrative hearing. He In his opinion, 4 Ms. Valentine is capable of working, although he 5 6 acknowledged she should have limited contact with the 7 public and her supervisors would need to accommodate her 8 personality disorders. (TR 41.) The ALJ placed 9 10 significant weight on Dr. Layton’s assessment of Ms. 11 Valentine’s psychological records. 12 The ALJ placed some weight on the reviews that were conducted by Drs. Regets 13 14 15 16 and Postovoit. By contrast, she gave little weight to Dr. Dalley’s first evaluation. Ms. Valentine challenges the ALJ’s weighing of the 17 18 19 20 evidence, especially the psychological evaluations and reviews. Ms. Valentine begins with Dr. Dalley’s first evaluation. She says the ALJ discounted Dr. Dalley’s 21 22 findings because she (Ms. Valentine) “presented [to him] 23 with no symptoms, yet [he] still gave an opinion of 24 marked limitations which was totally inconsistent with 25 26 27 his examination.” (TR 18.) Ms. Valentine is correct; 15 that is what the ALJ wrote at that point in her decision. 1 2 However, in fairness to the ALJ, her decision should be 3 considered as a whole. The ALJ went on to discuss Dr. 4 Dalley’s second evaluation. She concluded her discussion 5 6 by writing, “Dr. Dalley indicated based on her 7 malingering presentation it would be difficult if not 8 impossible to determine how her reported symptoms would 9 10 affect her work activities. 11 gives little weight to any functional limitations listed 12 for this reason.” Therefore, the undersigned (TR at 20 (emphasis added).) While, 13 14 15 16 admittedly, the ALJ did not specifically mention the limitations Dr. Dalley observed in 2011, it is reasonable to infer she had those limitations in mind as she wrote 17 18 19 20 the two sentences quoted above. In other words, it is reasonable to infer the ALJ discounted Dr. Dalley’s 2011 limitations, in part, because of Ms. Valentine’s 21 22 23 24 malingering during the 2012 evaluation. Ms. Valentine also challenges the ALJ’s decision to give some weight, rather than full weight, to the 25 26 27 findings of Drs. Regets and Postovoit. 16 (TR 20.) As will be recalled, they both agreed her “ability to understand 1 2 and remember detailed instructions” is “[m]oderately 3 limited” (TR 61, 72); just as they both agreed her 4 “ability to perform activities within a schedule, 5 6 maintain regular attendance, and be punctual” is 7 “[m]oderately limited” (TR 62, 71). 8 The ALJ discounted those findings on the ground those limitations were not 9 10 observed by health care providers at CHAS. 11 takes issue with the ALJ’s interpretation of the record. 12 Ms. Valentine According to Ms. Valentine, the ALJ overlooked CHAS 13 14 15 16 records that are consistent with the findings of Drs. Regets and Postovoit. Ms. Valentine has a point. The health care providers who examined Ms. Valentine did note 17 18 19 20 some of the same types of issues Drs. Regets and Postovoit noted. However, it must be remembered the ALJ did not completely discount the opinions of Drs. Regets 21 22 and Postovoit. To the contrary, the ALJ gave them “some 23 weight.” (TR 20.) If, perhaps, the ALJ should have 24 given their opinions more weight, any error on her part 25 26 27 is harmless given the record as a whole. 17 ASSESSING MS. VALENTINE’S CREDIBILITY 1 2 3 A claimant’s statements about her impairments, restrictions, and daily activities are evidence. 20 4 C.F.R. § 416.912(b)(3). By themselves, however, they are 5 6 not enough to establish the existence of disability. 7 C.F.R. § 416.929(a). 8 9 10 11 12 13 14 15 16 20 SSR 96-7p explains: No symptom or combination of symptoms can be the basis for a finding of disability, no matter how genuine the individual's complaints may appear to be, unless there are medical signs and laboratory findings demonstrating the existence of a medically determinable physical or mental impairment(s) that could reasonably be expected to produce the symptoms. 1996 WL 374186, at *1 (July 2, 1996). This means a 17 18 19 20 claimant has a two-part burden of production: “(1) she must produce objective medical evidence of an impairment or impairments; and (2) she must show that the impairment 21 22 or combination of impairments could reasonably be 23 expected to (not that it did in fact) produce some degree 24 of symptom.” Smolen v. Chater, 80 F.3d 1273, 1282 (9th 25 26 27 Cir.1996) (explaining Cotton v. Bowen, 799 F.2d 1403, 18 1407-08 (9th Cir.1986)). Ms. Valentine fulfilled her 1 2 burden of production. The ALJ found, ““[C]laimant’s 3 medically determinable impairments could reasonably be 4 expected to cause the alleged symptoms[.]” (TR 18.) 5 6 That being the case, the ALJ had to evaluate “the 7 intensity, persistence, and functionally limiting effects 8 of the symptoms” in order to determine “the extent to 9 10 which the symptoms affect the individual's ability to do 11 basic work activities.” 12 (July 2, 1996). SSR 96–7p, 1996 WL 374186, at *2 “This requires the adjudicator to make a 13 14 15 16 finding about the credibility of the individual's statements about the symptom(s) and its functional effects.” Id. 17 18 19 20 A credibility determination involves a careful examination of the record as a whole. The ALJ must decide whether the claimant’s “statements can be believed 21 22 and accepted as true.” SSR 96-7p, 1996 WL 374186, at *4. 23 If there is no evidence of malingering on the claimant's 24 part, “the ALJ may reject the claimant's testimony 25 26 27 regarding the severity of her symptoms only if he makes 19 specific findings stating clear and convincing reasons 1 2 for doing so.” Smolen, 80 F.3d at 1283. Here, evidence 3 of malingering emerged during Ms. Valentine’s second 4 evaluation by Mahlon Dalley, Ph.D. During the second 5 6 evaluation, which took place on March 3, 2012, Dr. Dalley 7 administered a number of tests. 8 (TR 201.) The results suggested a lack of effort on Ms. Valentine’s part. 9 10 After looking at the results, Dr. Dalley concluded the 11 results of the tests were invalid. 12 (TR 203.) He wrote, “When Nicole is more motivated to give more realistic and 13 14 15 16 valid responses, a re-evaluation is recommended.” Id. Ms. Valentine questions whether Dr. Dalley’s diagnosis of malingering is sustainable given the cognitive 17 18 19 20 limitations he observed during his prior evaluation on June 3, 2011. (TR 179, 180.) She suggests the invalid test results on March 3, 2012, were a function of 21 22 cognitive limitations rather than malingering. As she 23 notes, Dr. Dalley recommended additional testing. 24 She seems to be suggesting Dr. Dally was unsure of the 25 26 27 diagnosis he made on March 3rd. 20 If that is her position, it is not supported by the record. Dr. Dalley made a 1 2 specific finding: 3 malingering. on March 3rd, Ms. Valentine was Granted, he did recommend additional 4 testing; but his recommendation of additional testing was 5 6 a contingent recommendation. 7 only if Ms. Valentine became “more motivated to give more 8 He recommended reevaluation realistic and valid responses[.]” (TR 203.) In no way 9 10 did Dr. Dalley’s recommendation undercut his finding. 11 Given Ms. Valentine’s performance on the tests he 12 administered, he decided she was malingering on March 3rd. 13 14 The ALJ properly considered Dr. Dalley’s finding in 15 evaluating Ms. Valentine’s credibility. In view of Ms. 16 Valentine’s malingering on March 3rd, it is debatable 17 18 19 20 whether the ALJ was bound by the clear-and-convincingreasons rule. However, the Court need not resolve the issue because the reasons the ALJ gave for discounting 21 22 23 24 Ms. Valentine’s testimony are clear and convincing. Broadly speaking, the ALJ discounted Ms. Valentine’s testimony for two reasons. (TR 21.) To begin with, the 25 26 27 ALJ decided Ms. Valentine’s description of her alleged 21 physical impairments (i.e., foot, knee, and back pain) 1 2 was not supported by adequate medical evidence. Id. In 3 addition, the ALJ cited inconsistencies in the record. 4 Id. Ms. Valentine challenges the ALJ’s reasoning. 5 6 According to Ms. Valentine, the ALJ failed to establish 7 an adequate basis for discounting her testimony. 8 At the administrative hearing, Ms. Valentine alleged 9 10 she suffers from foot, knee, and back pain. 11 observed that Ms. Valentine had discussed her pain 12 The ALJ symptoms with health care providers on two occasions 13 14 15 16 (i.e., May 21, 2012, and June 29, 2012). Although, on both occasions, Ms. Valentine complained of pain (TR 277, 282), health care providers never were able to 17 18 19 20 substantiate her complaints. The ALJ cited the paucity of evidence at two different points in her decision. At Step Two, she determined Ms. Valentine’s foot, knee and 21 22 back pain do not significantly limit her ability to 23 engage in basic work activities. 24 Four, the ALJ cited the paucity of medical evidence as 25 26 27 22 (TR 14-15.) At Step one reason to question Ms. Valentine’s credibility. (TR 1 2 3 21.) Ms. Valentine argues an ALJ may not consider the lack 4 of evidence supporting a claimant’s allegation of 5 6 physical impairments when assessing the credibility of a 7 claimant’s allegation of mental impairments. 8 Ms. Valentine’s argument is not supported by the law of this 9 10 circuit. 11 ALJ may employ “ordinary techniques of credibility 12 In the Ninth Circuit, it is well established an evaluation.” Smolen, 80 F.3d at 1284. Such techniques 13 14 15 16 include, but are not limited to, considering “the claimant's reputation for lying,” together with any “prior inconsistent statements concerning the symptoms, 17 18 19 20 and [any] other testimony by the claimant that appears less than candid[.]” Id. (emphasis added). Clearly, then, an ALJ has discretion to consider a wide range of 21 22 information in assessing a claimant’s credibility. 23 Nothing in the rule quoted above suggests an ALJ must 24 compartmentalize evidence in the manner advocated by Ms. 25 26 27 Valentine. To the contrary, the above-quoted rule 23 implies an ALJ may consider problems with a claimant’s 1 2 testimony concerning her physical impairments when 3 evaluating the credibility of her testimony concerning 4 her mental impairments and vice versa. The ALJ did not 5 6 err by doing so in this case. 7 8 As explained above, the ALJ gave two reasons for discounting Ms. Valentine’s testimony. Besides citing 9 10 the paucity of medical evidence, the ALJ also cited 11 inconsistencies in the record. 12 At the hearing, Ms. Valentine said she struggled to perform basic tasks such 13 14 15 16 as shopping and keeping her residence clean. 48.) (TR 46, By contrast, on May 21, 2012, she told a physician’s assistant she was “‘able to get in and out of 17 18 car, go down stairs and perform activities of daily 19 living.’” (TR 21 (quoting TR 277).) This was not the 20 only statement Ms. Valentine made on May 21st about her 21 22 physical limitations. As the ALJ noted, Ms. Valentine 23 also said she “‘can’t stand for more than a couple of 24 hours [due to] weight.’” (TR 21 (quoting TR 277).) 25 26 27 However, on June 29, 2012, Ms. Valentine told a 24 physician’s assistant she “ha[d] been exercising, ha[d] 1 2 lost about 15 pounds. [She was] [o]ut of a bad 3 relationship and ‘feeling great’.’” (TR 21 (quoting TR 4 282).) This last statement was consistent with the 5 6 results of x-rays and the examination that took place on 7 June 29th. 8 On that date, a physician’s assistant observed “[r]ecent x-rays show minimal scoliosis, disk 9 10 space narrowing and arthrosis.” 11 physician’s assistant also noted “[n]ormal mobility” with 12 (TR 282.) The respect to Ms. Valentine’s cervical and thoracic 13 14 15 16 vertebrae, (TR 21 (quoting TR 284)), and “[f]ull range of motion” with respect to her knees and feet. (TR 284.) These findings tended to contradict Ms. Valentine’s pain 17 18 19 20 complaints, a circumstance that concerned the ALJ. The ALJ’s concern was heightened by evidence of malingering on the tests that were administered by Dr. Dalley on 21 22 March 3, 2012. (TR 21.) There were other 23 inconsistencies that troubled the ALJ. Although Ms. 24 Valentine complained of depression and anxiety (TR 277, 25 26 27 282), she was upbeat at both the June 29th exam and 25 another that took place on October 12, 2012. At the 1 2 latter, she reported to a mental health professional, 3 “[S]he has new boyfriend, who has been supportive. She 4 [i]s going to school, working part time, feels like her 5 6 7 8 motivation and mood are improved.” (TR 294.) Ms. Valentine objects to the ALJ’s credibility determination on several grounds. Two have already been 9 10 addressed; namely, Ms. Valentine’s contention that little 11 weight should be given to Dr. Dalley’s 2012 malingering 12 diagnosis, and her contention that evidence relating to 13 14 15 16 her physical impairments is not relevant to her mental impairments. However, there is a third objection. Ms. Valentine submits the ALJ attached too much significance 17 18 19 20 to the generally positive comments she made to health care providers during the summer and fall of 2012. In Ms. Valentine’s opinion, the comments in question 21 22 reflected a temporary improvement. As she points out, 23 “Occasional symptom-free periods -- and even the sporadic 24 ability to work -- are not inconsistent with disability.” 25 26 27 Lester v. Chater, 81 F.3d 821, 833 (9th Cir.1995). 26 While Ms. Valentine has correctly stated the law, a fair 1 2 reading of the ALJ’s decision reveals the ALJ considered 3 Ms. Valentine’s positive comments in light of the record 4 as a whole. The ALJ did not place undue weight upon her 5 6 positive comments. 7 a number of circumstances the ALJ weighed. 8 Rather, the comments were but one of That being the case, the ALJ’s consideration of Ms. Valentine’s 9 10 11 12 positive comments was not improper. CONCLUSION The ALJ’s findings are supported by substantial 13 14 15 16 evidence. The conclusions she drew from her findings are reasonable. She properly discounted Ms. Valentine’s credibility, and any error in her weighing of the 17 18 19 20 psychological evidence (if error there was) was harmless. The Court affirms the ALJ’s decision. IT IS HEREBY ORDERED: 21 22 1. The plaintiff’s motion for summary judgment (ECF 23 24 No. 12) is denied. 25 26 27 27 2. The defendant’s motion for summary judgment (ECF 1 2 No. 13) is granted. 3 4 IT IS SO ORDERED. The District Court Executive is 5 hereby directed to file this Order, furnish copies to 6 7 counsel, enter judgment accordingly, and close this case. 8 9 DATED this ____ day of September, 2015. 10th 10 11 12 13 Van Sickle FRED VAN SICKLE Senior United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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