United States District Court, D. Arizona
A. Teilborg Senior United States District Judge.
before the Court is Plaintiff's appeal of his denial of
social security disability benefits. On appeal, Plaintiff
raises two claims of error: 1) the Administrative Law Judge
(“ALJ”) did not give adequate reasons for
discrediting Plaintiff's symptom testimony; and 2) the
ALJ did not give adequate reasons for rejecting
Plaintiff's six medical professionals' opinions.
ALJ's decision to deny benefits will be overturned
“only if it is not supported by substantial evidence or
is based on legal error.” Magallanes v. Bowen,
881 F.2d 747, 750 (9th Cir. 1989) (quotation omitted).
“Substantial evidence” means more than a mere
scintilla, but less than a preponderance. Reddick v.
Chater, 157 F.3d 715, 720 (9th Cir. 1998).
inquiry here is whether the record, read as a whole, yields
such evidence as would allow a reasonable mind to accept the
conclusions reached by the ALJ.” Gallant v.
Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (citation
omitted). In determining whether there is substantial
evidence to support a decision, the Court considers the
record as a whole, weighing both the evidence that supports
the ALJ's conclusions and the evidence that detracts from
the ALJ's conclusions. Reddick, 157 F.3d at 720.
“Where evidence is susceptible of more than one
rational interpretation, it is the ALJ's conclusion which
must be upheld; and in reaching his findings, the ALJ is
entitled to draw inferences logically flowing from the
evidence.” Gallant, 753 F.2d at 1453
(citations omitted); see Batson v. Comm'r of the Soc.
Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). This
is because “[t]he trier of fact and not the reviewing
court must resolve conflicts in the evidence, and if the
evidence can support either outcome, the court may not
substitute its judgment for that of the ALJ.”
Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir.
1992); see also Young v. Sullivan, 911 F.2d 180, 184
(9th Cir. 1990).
is responsible for resolving conflicts in medical testimony,
determining credibility, and resolving ambiguities. See
Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).
Thus, if on the whole record before the Court, substantial
evidence supports the ALJ's decision, the Court must
affirm it. See Hammock v. Bowen, 879 F.2d 498, 501
(9th Cir. 1989); see also 42 U.S.C. § 405(g)
(2012). On the other hand, the Court “may not affirm
simply by isolating a specific quantum of supporting
evidence.” Orn v. Astrue, 495 F.3d 625, 630
(9th Cir. 2007) (quotation and citation omitted).
the Court is not charged with reviewing the evidence and
making its own judgment as to whether Plaintiff is or is not
disabled. Rather, the Court's inquiry is constrained to
the reasons asserted by the ALJ and the evidence relied on in
support of those reasons. See Connett v. Barnhart,
340 F.3d 871, 874 (9th Cir. 2003).
PLAINTIFF'S SYMPTOM TESTIMONY
an ALJ makes a finding of malingering based on affirmative
evidence thereof, ” the ALJ may only find the claimant
not credible by making specific findings supported by the
record that provide clear and convincing reasons to explain
her credibility evaluation. Robbins v. Soc. Sec.
Admin., 466 F.3d 880, 883 (9th Cir. 2006) (citing
Smolen v. Chater, 80 F.3d 1273, 1283-84 (9th Cir.
1996)). In this case, Plaintiff argues that the ALJ was
required to give clear and convincing reasons to reject the
claimant's testimony about the severity of his symptoms.
(Doc. 14 at 20). Defendant does not dispute that this is the
governing legal standard. (Doc. 15 at 12).
rendering a credibility determination, the ALJ may consider
several factors, including: “(1) ordinary techniques of
credibility evaluation, such as the claimant's reputation
for lying, prior inconsistent statements concerning the
symptoms, and other testimony by the claimant that appears
less than candid; (2) unexplained or inadequately explained
failure to seek treatment or to follow a prescribed course of
treatment; and (3) the claimant's daily
activities.” Tommasetti v. Astrue, 533 F.3d
1035, 1039 (9th Cir. 2008) (quoting Smolen, 80 F.3d
at 1284). If the ALJ relies on these factors and his reliance
is supported by substantial evidence, the Court “may
not engage in second-guessing.” Id. (quoting
Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir.
case, Plaintiff argues the ALJ erred in 8 ways. Some of the
claimed errors are errors of fact, and some are errors of
Alleged Errors of Fact
does not dispute that legally Plaintiff's testimony being
inconsistent with the medical record would be a clear and
convincing reason to not fully credit his symptom testimony.
Instead, Plaintiff argues that the ALJ failed to consider all
of the medical evidence in this case in determining that
Plaintiff's testimony was inconsistent with the medical
discusses and cites significant medical evidence that is
inconsistent with the severity of the symptoms Plaintiff
claims. (Doc. 9-3 at 30-32). Plaintiff seems to complain that
were this Court to review the medical record de novo, there
would be some doctors' notes that are more favorable to
Plaintiff than the ALJ's three, single-spaced page
opinion on Plaintiff's symptoms recounts. Further,
Plaintiff does not dispute that any of the ALJ's
citations are correct; instead Plaintiff argues that there
would be another way to view the evidence as a whole.
However, this Court's function is not to re-weigh the
evidence, and this Court cannot substitute its judgment for
that of the ALJ. Gallant, 753 F.2d at 1453;
Batson, 359 F.3d at 1193. Accordingly, the Court
will not reverse the ALJ's consideration of the evidence
on this point.
does not dispute that the ALJ correctly recounted his daily
activities. Further, Plaintiff does not dispute that complex
and robust daily activities can be a clear and convincing
reason to believe that Plaintiff is exaggerating his
limitations as they relate to working. Instead, Plaintiff
argues that in recounting Plaintiff's daily activities,
the ALJ failed to note that he performs some of them either
inconsistently or with rest periods. However, Defendant notes
that “Even where those activities suggest some
difficulty in functioning, they may be grounds for
discrediting the claimant's testimony to the extent that
they contradict claims of a totally debilitating
impairment.” (Doc. 15 at 16 quoting Molina,
674 F.3d at 1113).
the ALJ noted that Plaintiff dresses independently, fosters
25 animals in his home, goes to the pet facility 1 to 2 times
per week, and cooks easy meals. (Doc. 9-3 at 32). Plaintiff
does not dispute these things but claims Plaintiff sometimes
take breaks, or sometimes needs assistance putting on his
shoes. While these additional limitations may be true, they
do not change the ALJ's analysis that the number of
activities Plaintiff told his physician in 2014 he was
capable of performing regularly was inconsistent with the
severity of the symptoms Plaintiff claims to have. Thus, the
ALJ properly considered these facts.
the ALJ noted that Plaintiff had acted as executor of his
friend's estate in Pennsylvania, which required a long
flight, with long periods of sitting, which was inconsistent
with Plaintiff's claim that he must lay down for 2 hours
in the morning and 2 hours in the afternoon. (Doc. 9-3 at
32). All of these activities, taken together, provide a clear
and convincing reason to discount Plaintiff's symptom
Following Treatment Recommendations
reason listed by the ALJ for not crediting Plaintiff's
symptom testimony is that Plaintiff failed to follow his
doctors' treatment recommendation. Plaintiff does not
dispute that failing to follow treatment recommendations is a
clear and convincing reason to not fully credit his
testimony. However, Plaintiff argues that, with respect to
the recommendation that he have physical therapy, he did have
timely physical therapy and the ALJ erred in factually
concluding otherwise. (Doc. 14 at 25, n. 15).
found that, “It also appears that [Plaintiff] was
referred for physical therapy in April and July 2014, but the
record shows no compliance with this recommendation.”
(Doc. 9-3 at 30-31). Citing nothing, Plaintiff argues that
any delay or failure to obtain treatment was due to a lack of
insurance coverage. (Doc. 17 at 25, n. 15). However, nothing
in this record, or the record before the ALJ, factually
supports this argument. Thus, the Court finds this bare
assertion at the appellate level does not disprove the
ALJ's finding at the agency level. Thus, this Court finds
no factual error by the ALJ with respect to this finding.
Alleged Errors of Law
Specificity of the Opinion
found that Plaintiff's claimed symptoms were inconsistent
with the medical record. (Doc. 9-3 at 30-32). Plaintiff does
not dispute that Plaintiff's claimed symptoms being
inconsistent with the medical record is a clear and
convincing reason for the ALJ to not credit Plaintiff's
symptom testimony. However, Plaintiff argues that as a matter
of law, if the ALJ's analysis in this regard is not
specific enough, then this reason is not clear and
recounting Plaintiff's symptom testimony (Doc. 9-3 at
29-30), the ALJ spends 3 single spaced pages, citing over 50
exhibits, explaining how the medical record was inconsistent
with Plaintiff's symptom testimony. The Court will not
reproduce that portion of the ALJ's opinion in its
entirety in this Order. However, by way of example, the ALJ
At the current hearing, the claimant testified that his
biggest impediment to working full ...