Tembi v. Colvin
ORDER denying 14 Motion for Summary Judgment; Commissioner's disability dec affirmed. Signed by Judge Timothy M. Burgess on 9/20/16. (PRR, COURT STAFF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
Case No. 3:15-cv-00109-TMB
ORDER DENYING MOTION FOR
SUMMARY JUDGMENT AND
AFFIRMING DENIAL OF SOCIAL
CAROLYN W. COLVIN, Acting
Commissioner of Social Security
This matter is before the Court on Plaintiff Francois Tembi’s appeal of the administrative
denial of his application for Supplemental Security Income (“SSI”) payments. 1 Tembi filed an
application for SSI on April 10, 2012, claiming he has been disabled since March 30, 2005. 2 The
Defendant, the Commissioner of Social Security, denied Tembi’s claim on December 17, 2013. 3
Tembi has exhausted his administrative remedies and seeks relief from this Court, arguing that the
Commissioner’s determination that Tembi is not disabled within the meaning of the Social
Security Act (“SSA”) is not supported by substantial evidence and applies an erroneous standard
of law. Tembi filed this current action seeking a reversal of the Commissioner’s decision. 4 The
Commissioner opposes, arguing the denial of SSI benefits is supported by substantial evidence
Administrative Record (hereinafter “AR”) at 80.
AR at 10–23.
and is free of legal error. 5 For the reasons set forth below, Tembi’s Motion for Summary Judgment
is DENIED and the Commissioner’s disability determination is AFFIRMED.
Francois Tembi is a 46-year-old currently residing in Anchorage, AK. Tembi grew up in
Angola and immigrated to the United States in September 2002. 6 Tembi filed an application for
SSI benefits in April 2012, while a student at the University of Louisiana-Lafayette. 7 Tembi claims
he is unable to work as a result of a chronic stomach infection due to complications from his
treatment for stomach cancer. Tembi also claims he suffers from severe mental problems resulting
from witnessing the deaths of family members as a child during Angola’s 27-year civil war. 8 On
December 17, 2013, the Administrative Law Judge (“ALJ”) determined Tembi is not disabled
under the SSA and denied his application for SSI benefits. 9 The ALJ’s decision is the
Commissioner’s for purposes of Tembi’s 42 U.S.C. § 405(g) appeal. 10
Tembi appealed the ALJ’s denial of benefits, and on June 1, 2015, the Appeals Council
denied Tembi’s request for review, concluding that Tembi’s appeal provided no basis for changing
the ALJ’s decision. 11 Having exhausted his administrative remedies, Tembi commenced this
current action for summary judgment seeking a reversal of the Commissioner’s denial of benefits.
AR at 164.
AR at 103.
AR at 31.
AR at 10–23.
Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1161–62 (9th Cir. 2012) (citing Taylor
v. Comm’r of Soc. Sec. Admin., 659 F.3d 1228, 1231 (9th Cir. 2011)).
AR at 1–3.
STANDARD OF REVIEW
The findings of the ALJ or Commissioner of Social Security regarding any fact shall be
conclusive if supported by substantial evidence. 12 A decision to deny benefits will not be
overturned unless it either is not supported by substantial evidence or is based upon legal error. 13
Substantial evidence is defined by the United States Supreme Court as “such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion.” 14 Such substantial evidence
must be “more than a mere scintilla but less than a preponderance.” 15 If the evidence is susceptible
to more than one rational interpretation, the ALJ’s conclusion must be upheld. 16 If this Court
reverses an ALJ’s decision, the proper course is to remand to the agency for additional
investigation or explanation. 17
The Commissioner has established a five-step process for determining disability under the
SSA. 18 The claimant bears the burden of proof at steps one through four. 19 The burden shifts to
the Commissioner at step five. 20
See 42 U.S.C. § 405(g).
Molina v. Astrue, 674 F.3d 1104, 1110–11 (9th Cir. 2012).
Richardson v. Perales, 402 U.S. 389, 401 (1971).
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (quoting Matney v. Sullivan, 981 F.2d
1016, 1018 (9th Cir. 1992)).
Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984).
Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004).
See 20 C.F.R. § 404.1520; 20 C.F.R. § 416.920.
Tackett, 180 F.3d at 1098.
Step One. The first step is to determine whether the claimant is involved in “substantial
gainful activity.” 21 The ALJ found Tembi has not engaged in substantial gainful activity since
April 10, 2012, the application date. 22
Step Two. The second step is to determine whether the claimant has a medically severe
impairment or combination of impairments within the meaning of the regulations. 23 A severe
impairment significantly limits a claimant’s physical or mental ability to do basic work activities,
and does not consider age, education, or work experience. 24 The ALJ found Tembi has the
following severe impairment: adjustment disorder, not otherwise specified. 25
Step Three. The third step is to determine whether the impairment is the equivalent of a
number of listed impairments in 20 C.F.R. § 404, subpt. P, App. 1 that are so severe as to preclude
substantial gainful activity. 26 The ALJ concluded Tembi does not have an impairment or
combination of impairments that meets or medically equals the severity of one of the listed
Residual Functional Capacity. Before proceeding to step four, a claimant’s Residual
Functional Capacity (“RFC”) is assessed. 28 The RFC is what the claimant can still do despite his
20 C.F.R. § 416.920(b).
AR at 15.
20 C.F.R. § 416.920(c).
AR at 15.
20 C.F.R. § 404.1520(d).
AR at 16.
20 C.F.R. § 416.920(a)(4).
or her limitations. 29 The ALJ concluded that Tembi had the RFC to perform medium work, with
some non-exertional limitations. 30
Step Four. The fourth step is to determine whether the impairment prevents the claimant
from performing past relevant work. 31 If the claimant can still do his or her past relevant work, the
claimant is deemed not to be disabled. 32 Otherwise, the evaluation process moves to the fifth and
final step. The ALJ concluded that Tembi did not have past relevant work experience pursuant to
20 C.F.R. § 416.965. 33
Step Five. The final step is to determine whether the claimant is able to perform other work
in the national economy in view of his or her age, education, and work experience, and in light of
the claimant’s RFC. 34 If the claimant is capable of performing other work in the national economy,
they are deemed not to be disabled. If incapable of performing other work, the claimant is
considered disabled. 35 Based on the testimony of the vocational expert, the ALJ found there are
jobs that exist in significant numbers in the national economy and that Tembi can perform,
including kitchen helper, coffee maker, and janitor. 36
SSR 96-8P, 1996 WL 374184, at *2 (July 2, 1996).
Claimant’s limitations are as follows: “[C]an perform detailed, but not complex tasks, can
occasionally interact with co-workers, supervisors and the public, but should communicate with
co-workers and supervisors 20% of the time or less and 10% of the time or less with the
public.”). AR at 17.
20 C.F.R. § 416.920(f).
AR at 21.
20 C.F.R. § 416.920(g).
AR at 21–22.
After completing the five steps, the ALJ concluded that Tembi was not disabled as defined
under the SSA from the date of his application (April 10, 2012) through the date of the ALJ’s
decision (December 17, 2013). 37 This is the decision adopted by the Commissioner for purposes
of this appeal.
Tembi challenges the ALJ’s decision that he is not disabled as defined under the SSA and
therefore not entitled to SSI payments. Tembi’s appeal raises two issues: (1) whether the ALJ
reasonably evaluated and weighed the medical evidence concerning Tembi’s functional
limitations, and (2) whether the audiology report Tembi wants to introduce into the Administrative
Record should be struck by the Court. These issues are addressed in turn. 38
1. The ALJ reasonably evaluated and weighed the medical evidence concerning Tembi’s
At issue is whether the ALJ reasonably evaluated and weighed the medical evidence with
regard to Tembi’s functional limitations. In reaching the disability determination, the ALJ
considered Tembi’s medical evaluations as well as Tembi’s own assertions regarding his disability.
Tembi argues that the ALJ failed to account for the duration of his hospitalization and treatment
in Botswana in 2013. 39 The Commissioner contends that Tembi’s claims as to the length of his
hospitalization are inconsistent, that Tembi has failed to provide information as to any functional
AR at 22.
The Commissioner’s briefing also raises the issue of whether the ALJ properly relied on the
vocational expert’s testimony in reaching the disability determination. See Dkt. 16 at 10–11. The
Court does not address this issue as it is not raised by the Plaintiff in his appeal and there is no
indication from the Court’s review of the record that the ALJ improperly relied on the vocational
limitations resulting from his hospitalization in Botswana, and that, on the whole, the ALJ’s
determination is supported by substantial evidence. 40 After carefully reviewing the entire
Administrative Record, the Court concludes that the ALJ properly reviewed and weighed the
medical evidence in reaching the disability determination.
A. Substantial medical evidence supports the ALJ’s disability determination.
In making the disability determination, the ALJ considered the evaluations of Dr. Charles
Lee, Dr. Pamela Martin, and Dr. Amy Cavanaugh. Dr. Lee and Dr. Martin diagnosed Tembi with
a non-severe anxiety disorder and noted there was insufficient evidence to substantiate Tembi’s
disability claim. 41 The ALJ gave significant weight to the opinion of Dr. Cavanaugh, a clinical
psychologist who evaluated Tembi after he filed for disability benefits in 2012. 42 Although Dr.
Cavanaugh noted that Tembi demonstrated a stressed demeanor, some memory problems, and
difficulty managing finances, she attributed some of these deficits to Tembi’s poor cooperation
during parts of the evaluation. Dr. Cavanaugh opined that she “[did] not find that the claimant’s
mental illnesses are functionally impairing.” 43 The ALJ accurately noted that “the record does not
contain any opinions from treating or examining physicians indicating the claimant is disabled or
even has limitations greater than those determined in this decision.” 44
Dkt. 16 at 7.
AR at 43–48.
AR at 21, 164.
AR at 166.
AR at 21.
The ALJ noted that Tembi sought treatment in Botswana in January 2013 for acute stress
disorder. 45 Tembi argues that the ALJ erred by failing to account for the duration of his treatment
in Botswana as well as for the medications prescribed during that treatment. 46 Tembi highlights
two pages in the Administrative Record which purportedly indicate a discharge date of April 2,
2013, and a prescription for the medications Trimipramine and Amitriptyline. 47 Although the ALJ
may have failed to note the specific medications and discharge date, these pages contain minimal
information and shed little light on Tembi’s mental condition and treatment in Botswana, nor do
they indicate that Tembi is severely disabled and unable to work. 48 Considering the substantial
evidence supporting the ALJ’s determination, these incomplete records from Tembi’s psychiatric
treatment in Botswana are insufficient grounds for overturning the ALJ’s disability determination.
B. The ALJ’s adverse credibility findings justify the decision to discount some of the
Claimant’s subjective complaints.
Given the limited amount of objective evidence of Tembi’s alleged impairments, the ALJ
also considered the Claimant’s credibility. While the ALJ may not “rely on his own observations
of the claimant at the hearing as the sole reason for rejecting the claimant’s complaints,” the ALJ
“may use ordinary techniques of credibility evaluation, such as considering the claimant’s
reputation for truthfulness and any inconsistent statements in [the claimant’s] testimony.” 49 “In
AR at 19.
Dkt. 14 at 2.
Both medications are tricyclic antidepressants. See Tricyclic Antidepressants and Tetracyclic
Antidepressants, Mayo Clinic (June 28, 2016), http://www.mayoclinic.org/diseasesconditions/depression/in-depth/antidepressants/art-20046983.
See AR at 180–81.
Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001) (quoting Fair v. Bowen, 885 F.2d
597, 604 n.5 (9th Cir. 1989)).
reaching a credibility determination, an ALJ may weigh consistencies between the claimant's
testimony and his or her conduct, daily activities, and work record, among other factors.”50
Inconsistencies in a claimant’s reported symptoms and activities can adequately support the ALJ’s
adverse credibility finding and justify the ALJ’s decision to discount some of the claimant’s
subjective complaints. 51
Here, the ALJ found “[t]he description of the symptoms and limitations which the claimant
has provided throughout the record has generally been inconsistent and unpersuasive.” 52 The ALJ
struggled to reconcile Tembi’s claims of severe disability with his daily activities which included:
pursuing a university-level petroleum engineering degree, attending church, occasionally cooking,
shopping for groceries, doing laundry and ironing, utilizing public transportation, and otherwise
attending to his personal needs. 53 The ALJ also considered Tembi’s “unpersuasive appearance and
demeanor while testifying.” Tembi was treated for stomach cancer in 2005. 54 The ALJ observed
that despite Tembi’s complaints of chronic stomach pain, he neither appeared to be in discomfort
during the hearing nor did he present himself as an individual entirely incapable of managing his
Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009).
See Berry v. Astrue, 622 F.3d 1228, 1235 (9th Cir. 2010).
AR at 19. For example, the ALJ asked Tembi during the hearing how he was unable to do
basic math during his evaluation with Dr. Cavanaugh, yet was able to achieve passing grades in a
petroleum engineering degree. AR at 34.
AR at 19.
AR at 117.
own daily living activities. 55 Based on the medical record, the ALJ found that Tembi’s “stomach
cancer has been resolved with limited symptoms remaining.” 56
Based on both the inconsistencies in Tembi’s reported symptoms and his daily activities as
well as Tembi’s demeanor and appearance during the hearing, the ALJ found that Tembi’s claims
about his level of disability were not credible. 57 The Court will not second-guess the ALJ’s
determination on this issue. Because there is substantial evidence to support the ALJ’s disability
determination and the determination is not based on any legal error, the Court must uphold the
ALJ’s conclusion. 58
2. The exhibit Tembi offers with respect to his 2015 audiology test is not part of the
Administrative Record and cannot be considered by the Court in this appeal.
The Commissioner argues that certain exhibits filed by Tembi contained in docket 14-1 are
not properly before the Court and should be struck. 59 Docket 14-1 includes the two pages of
medical forms purportedly from the hospital in Botswana where Tembi received psychiatric
treatment in 2013. These pages are discussed above and are properly before the Court as part of
the Administrative Record at pages 180 and 181. Additionally, Tembi included in docket 14-1 the
results of an audiology test conducted on June 3, 2015, by Dr. Thomas McCarty in Anchorage.60
AR at 20.
AR at 16.
AR at 19 (“Essentially, the claimant’s allegations of a mental impairment which would
preclude the work set forth in the hypothetical are not credible.”).
Molina, 674 F.3d at 1110–11.
Dkt. 16 at 2.
Dkt. 14-1 at 4.
This page was not previously submitted by Tembi to the ALJ or to the Appeals Council and is not
a part of the Administrative Record.
42 U.S.C. § 405(g) provides for federal court review of final decisions of the
Commissioner. The Court is limited in its review to those documents and exhibits contained in the
Administrative Record as well as evidence submitted to the Appeals Council so long as the
evidence relates to the period on or before the ALJ’s decision. 61 A claimant is not entitled to
supplement the record or to a remand to consider new evidence where the evidence submitted is
not material to the ALJ’s disability determination. 62 Here, the audiology exam is from June 2015,
a year and a half after the ALJ issued her decision. Tembi has not explained how the audiology
report, completed well after the ALJ’s decision, demonstrates that Tembi was disabled when he
filed for SSI benefits in 2012. Because the report is neither a part of the Administrative Record nor
is it material to the ALJ’s decision in this case, Tembi is not entitled to supplement the record.
Accordingly, the Commissioner’s motion to strike the audiology exam from docket 14-1 (page 4
of 4) is GRANTED.
The Court has carefully reviewed the administrative record. For the foregoing reasons, the
Court concludes that the ALJ’s decision is supported by substantial evidence and contains no legal
errors. Accordingly, the Claimant’s Motion for Summary Judgment at docket 14 is DENIED and
the Commissioner’s disability determination is AFFIRMED.
IT IS SO ORDERED.
Brewes, 682 F.3d at 1162.
Allums v. Colvin, No. 14-15751, 2016 WL 1622075, at *2 (9th Cir. Apr. 25, 2016).
Dated at Anchorage, Alaska, this 20th day of September, 2016.
/s/ Timothy M. Burgess
TIMOTHY M. BURGESS
UNITED STATES DISTRICT JUDGE
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