Hynek v. Astrue

Filing 31

ORDER DENYING 13 Plaintiff's Motion for Summary Judgment; GRANTING 27 Defendant's Motion for Summary Judgment. The Clerk of Court is directed to enter judgment accordingly. Signed by Magistrate Carolyn S Ostby on 2/13/2012. (POC, ) Modified on 2/13/2012 to change to written opinion. (NOB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
CV 10-149-BLG-CSO

FLOYD D. HYNEK,
Plaintiff,

ORDER DENYING
PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT AND
GRANTING DEFENDANT’S
MOTION FOR SUMMARY
JUDGMENT

vs.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

Plaintiff Floyd D. Hynek [Hynek] initiated this action seeking
judicial review of the decision by the Defendant, Commissioner of Social
Security [Commissioner], to deny his application for social security
disability benefits and disability insurance [disability benefits] under
Title II of the Social Security Act, 42 U.S.C. '§ 416 and 423. Court Doc.
1; Court Doc. 21 at 2. Pursuant to the parties’ consent, this case was
assigned to the undersigned judge for all further proceedings, including
entry of judgment. Court Doc. 8.

1

Now pending are the parties’ cross motions for Summary
Judgment. For the reasons stated below, Hynek=s motion will be denied
and the Commissioner’s motion will be granted.
I.

PROCEDURAL BACKGROUND
Hynek is a 51-year-old U.S. Air force veteran who received

disability benefits from the Department of Veterans Affairs [VA] and
the Social Security Administration [SSA]. Tr. at 21, 1464. Hynek
claimed disability based on a spinal disc condition, asthma, traumatic
arthritis, a foot condition, two claims of nerve paralysis, back and neck
pain, bilateral arm weakness and numbness, headaches, vision
problems, gastrointestinal problems and irritable bowel syndrome,
narcolepsy, carpel tunnel, and mental health issues. Tr. at 1464, 26-29.
Hynek filed for disability with the SSA in December 2003. Tr. at
458. Hynek’s application was initially denied, and was denied again on
reconsideration in 2004. Tr. at 442, 446. After a hearing in April 2005,
however, ALJ Michael Kilroy approved Hynek for disability benefits in
a fully favorable decision dated May 2, 2005. Tr. at 21. That decision
covered the time between October 14, 2003 (Hynek’s amended onset
date), and May 2, 2005. Tr. at 22.
2

On April 25, 2005, the VA received a call from Mark Guerin, one
of Hynek’s neighbors, who claimed that Hynek was defrauding the
government and was not as disabled as he claimed to be. Tr. at 1467.
The VA initiated an investigation, which included medical review,
surveillance, interviews of Hynek’s neighbors and an interview with
Hynek. Tr. 1464-1518. The VA found that Hynek “is physically active
and is believed to have made false applications and statements” in order
to receive VA benefits in a “scheme [that] caused VA to pay HYNEK
compensation benefit payments in excess of $100,000.” Tr. at 1464.
The VA forwarded their investigation results to the SSA, which in
turn notified Hynek that new evidence received from the Department of
Veterans Affairs Office of Inspector General and the Social Security
Administration’s Office of Inspector General raised serious issues that
might affect the previously favorable decision and the claimant’s
entitlement to Social Security disability benefits. Tr. at 21.
At the SSA’s request, Hynek appeared with counsel and testified
at a hearing in June 2009. Tr. at 21; 1386-1463. A medical expert, Dr.
Veraldi, and a vocational expert, Mr. Fortune, were also present at the
hearing. Tr. at 1386-1463. After the hearing, the ALJ issued a new
3

decision, dated September 29, 2009, finding that Hynek committed
“similar fault” when he applied for disability benefits and that Hynek
was not entitled to the benefits he had received for the time between
October 14, 2003, and May 2, 2005. Tr. 21-60. Hynek requested review
of the ALJ’s decision by the Appeals Council, but was denied. Tr. 11-15.
II.

STANDARD OF REVIEW
This Court=s review is limited. The Court may set aside the

Commissioner=s decision only where the decision is not supported by
substantial evidence or where the decision is based on legal error. Ryan
v. Commr. of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008); 42 U.S.C. '
405(g). ASubstantial evidence is more than a mere scintilla, but less
than a preponderance.@ Id. (citing Bayliss v. Barnhart, 427 F.3d 1211,
1214 n. 1 (9th Cir. 2005) (internal quotations omitted)). AIt is such
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.@ Id. (internal quotation marks and citation
omitted).
This Court must consider the record as a whole, weighing both the
evidence that supports and detracts from the Commissioner=s
conclusion, and cannot affirm the ALJ Aby isolating a specific quantum
4

of supporting evidence.@ Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882
(9th Cir. 2006) (internal quotation marks and citation omitted). The
ALJ is responsible for determining credibility, resolving conflicts in
medical testimony, and resolving ambiguities. Hegel v. Astrue, 325
Fed.Appx. 580 (9th Cir. 2009)(citing Andrews v. Shalala, 53 F.3d 1035,
1039 (9th Cir.1995)).
AWhere the evidence is susceptible to more than one rational
interpretation, one of which supports the ALJ=s decision, the ALJ=s
conclusion must be upheld.@ Thomas v. Barnhart, 278 F.3d 947, 954 (9th
Cir. 2002) (internal citation omitted).
III.

BURDEN OF PROOF
A claimant is disabled for purposes of the Act if: (1) the claimant

has a 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 twelve months, and (2) the
impairment or impairments are of such severity that, considering the
claimant=s age, education, and work experience, the claimant is not only
unable to perform previous work, but the claimant cannot Aengage in
5

any other kind of substantial gainful work which exists in the national
economy.@ Schneider v. Commr., 223 F.3d 968, 974 (9th Cir. 2000)
(citing 42 U.S.C. ' 1382c(a)(3)(A)-(B)); 20 C.F.R. ' 416.905(a).
In determining whether a claimant is disabled, the Commissioner
follows a five-step sequential evaluation process. Tackett v. Apfel, 180
F.3d 1094, 1098 (9th Cir. 1999); 20 C.F.R. '' 404.1520(a)(4)(I)-(v),
416.920(a)(4)(I)-(v).
1.

The claimant must show that he or she is not currently
engaged in substantial gainful activity. Tackett, 180 F.3d at
1098.

2.

If not so engaged, the claimant must show that he or she has
a severe impairment. Id.

3.

The claimant is conclusively presumed disabled if his or her
impairments meet or medically equal one contained in the
Listing of Impairments described in 20 C.F.R. Pt. 404,
Subpt. P, App. 1 (hereafter AListing of Impairments@). Id. If
the claimant=s impairments do not meet or medically equal
one listed in the regulations, the analysis must proceed to
the fourth step.

6

4.

If the claimant is still able to perform his or her past
relevant work, he or she is not disabled and the analysis
ends here. Id. AIf the claimant cannot do any work he or she
did in the past, then the claimant=s case cannot be resolved
at [this step] and the evaluation proceeds to the fifth and
final step.@ Id. at 1098-99.

5.

If the claimant is unable to perform his or her past relevant
work due to a Asevere impairment (or because [he or she
does] not have any past relevant work)@ the court will
determine if the claimant is able to make an adjustment to
perform other work, in light of his or her residual functional
capacity, age, education, and work experience. 20 C.F.R. ''
404.1520(g), 416.920(g). If an adjustment to other work is
possible then the claimant is not disabled. Tackett, 180 F.3d
at 1099.

The claimant bears the burden of proof at steps one through four,
but at the fifth step the Commissioner bears the burden of establishing
that there is other work in significant numbers in the national economy
that the claimant can perform. Tackett, 180 F.3d at 1099. The
Commissioner can meet this burden via the testimony of a vocational
expert or reference to the Medical-Vocational Guidelines at 20 C.F.R.
Pt. 404, Subpt. P, App. 2.; Tackett, 180 F.3d at 1099. If the
Commissioner is unable to meet this burden, then the claimant is
disabled and entitled to benefits. Tackett, 180 F.3d at1099.
IV.

THE ALJ=s OPINION
7

The ALJ first noted that his decision was a reopening and
redetermination pursuant to 20 C.F.R. §§ 404.988(A)(c)(1) and
416.1488(c), which allow for reopening a decision at any time if it was
obtained by “fraud or similar fault.” Tr. at 21. The ALJ outlined the
standards for determining both disability and similar fault. (Tr. 22-25)
In determining that Hynek was no longer eligible for disability
benefits, the ALJ followed the applicable sequential evaluation process
for redetermination, adding an additional evaluation and determination
for similar fault. Tr. at 21-60; Tackett, 180 F.3d at1098-99. First, the
ALJ found that Hynek did not engage in substantial gainful activity
between October 14, 2003, and May 2, 2005. Tr. at 25. Next, the ALJ
determined that Hynek had eight severe impairments and two nonsevere impairments. Tr. at 25-26.
The severe impairments were: (1) degenerative disc disease of the
cervical and lumbar spine; (2) reconstructive surgery of the left knee
(ACL tear); (3) carpal tunnel release of the right hand; (4) migraine
headaches; (5) history of bunions and bilateral hammertoes; (6)
bilateral hip osteoarthritis; (7) dysthymic disorder; (8) panic disorder
with agoraphobia. Tr. at 25. The ALJ found that Hynek’s asthma and
8

hypertension were non-severe. Tr. at 25-26.
The ALJ then inserted into the sequential evaluation process his
analysis and determination of “similar fault.” Tr. at 26-44. He began
by reviewing Hynek’s testimony at the 2005 hearing, which lead to the
ALJ’s favorable decision in 2005. Tr. at 26-29. The ALJ then discussed
the evidence that provided a basis for his finding of “similar fault.” Tr.
at 29-36. That evidence included: (1) statements provided by Hynek’s
neighbors (Tr. at 29-30); (2) surveillance reports and video from the
Office of the Inspector General [OIG] (Tr. at 30-31); (3) Hynek’s written
statement and the accompanying memorandum of interview dated June
29, 2007 (Tr. at 31-33); and (4) Hynek’s testimony at the 2009 hearing
(Tr. at 33-36). The ALJ also discussed Hynek’s objections to the
investigative evidence and the 2009 hearing testimony. Tr. at 36-39.
The ALJ then determined that, by a preponderance of the evidence,
“similar fault” was involved in some of the evidence Hynek provided for
the ALJ’s 2005 favorable determination. Tr. at 43-44.
The ALJ enumerated ten pieces of evidence that had to be
disregarded – pursuant to 42 U.S.C. §§ 405(u) and 1383(f), 20 C.F.R. §§
404.988(A)(c)(1) and 416.1488(c), and SSR 00-2p – because they were
9

tainted by “similar fault.” Tr. at 39-44. That evidence included
testimony Hynek gave at the 2005 hearing, statements from Hynek’s
Personal Data Questionnaire, and statements in Hynek’s initial
disability report. Tr. at 40. Citing SSR 00-2p, the ALJ also found that
Hynek’s testimony about his back, hip, shoulder, arm, and foot pain
were no longer credible, after the “similar fault” finding. Tr. at 40-41.
The ALJ cited several specific reasons for disregarding the
evidence, including: statements by Mr. and Mrs. Guerin and the Perros
(Hynek’s neighbors) (Tr. at 41); videotapes, memoranda, and reports
from the investigation by OIG (Tr. at 41-42); Hynek’s written statement
(Tr. at 42); and Hynek’s testimony at the 2009 hearing (Tr. at 42-43).
The ALJ explained that because “similar fault” tainted the enumerated
evidence, he had to disregard it. Tr. at 43-44.
The ALJ then proceeded with the remaining sequential analysis to
re-determine Hynek’s eligibility for disability benefits, without using
the disregarded evidence. Tr. 44-60. The ALJ found that none of
Hynek’s severe impairments, nor a combination thereof, met or
medically equaled the listed impairments in 10 C.F.R. Part 404,
Subpart P, Appendix 1. Tr. at 44-45. The ALJ also found that none of
10

Hynek’s mental impairments, considered singly or in combination, met
or medically equaled the criteria listed in 12.04 Affective disorders, or
12.06 Anxiety disorders, nor were the “paragraph B” criteria satisfied.
Tr. at 45-47.
Next, the ALJ found that Hynek has the residual functional
capacity to perform light work, as defined in 20 C.F.R. § 404.1567(b).
Tr. at 47. The ALJ qualified this by finding that Hynek must
“periodically alternate between sitting, standing, and walking” but was
able to “occasionally balance, kneel, crouch, stoop and crawl,
occasionally climb ramps and/or stairs, frequently, though not
repetitively, handle, finger, and feel (fine manipulation).” Id.

The ALJ

also noted that Hynek should avoid “concentrated exposure to vibration,
fumes, odors, dusts, gases, and other pulmonary irritants, and to
hazards such as dangerous machinery and unprotected heights.” Id.
Finally, the ALJ qualified that due to Hynek’s mental impairments, “he
was limited to occasional interaction with smaller groups of people, to
relatively low-stress jobs with minimal production requirements, to
routine and simple work activity in terms of instruction and new
learning, and to jobs that do not require more than minimal new
11

learning… .” Id.
The ALJ discussed the basis for this determination, including
Hynek’s symptoms, the objective medical evidence, opinion evidence,
and the evidence provided by the OIG investigation. Tr. at 47-58. The
ALJ noted that he did not rely on any of the disregarded evidence to
make the determination. Tr. at 58.
After concluding that Hynek was unable to perform past relevant
work, the ALJ reviewed the evidence from the vocational expert (Tr. at
58-59) and concluded that “considering the claimant’s age, education,
work experience, and residual functional capacity [RFC], the claimant
was capable of making a successful adjustment to other work that
existed in the national economy” and so a finding of “not disabled” was
appropriate for the relevant period from October 14, 2003, to May 2,
2005. Tr. at 59-60.
V.

THE PARTIES= ARGUMENTS
A.

Hynek=s Arguments

Hynek makes five arguments. Hynek first argues that the ALJ
and the SSA failed to give him adequate notice of the reasons that the
favorable 2005 decision was reopened. Court Doc. 21 at 6-8; Court Doc.
12

30 at 4-5. Hynek maintains that the SSA is required to provide notice
of the “specific rationale” for reopening, citing Wyatt v. Barnhart, 349
F.3d 983 (7th Cir. 2003), for support. Court Doc. 21 at 6-8 Court Doc. 30
at 4-5. Hynek points out that the notice letter, referred to by the ALJ
and dated June 30, 2008, is absent from the record, and he argues that
adequate notice cannot be established without it. Court Doc. 21 at 6-8
Court Doc. 30 at 4-5.
Second, Hynek argues that this Court can review the ALJ’s
decision to reopen (Court Doc. 30 at 2-3) and that the ALJ’s decision to
reopen was improper. Court Doc. 21 at 6-8; Court Doc. 30 at 4-11.
Hynek asserts that the ALJ’s decision to reopen was based on evidence
that came after the 2005 decision, and therefore should not have been
considered under Wyatt. 349 F.3d 983. Court Doc. 21 at 8.
Third, Hynek argues, as part of his claim that the decision to
reopen was improper, that the ALJ’s finding of “similar fault” was not
supported by a preponderance of the evidence, as required by SSR 002p. Court Doc. 21 at 8-18; Court Doc. 30 at 4-6. Hynek maintains that
the ALJ erroneously relied on the video tapes, statements from
neighbors, and Hynek’s own statements to make the determination,
13

none of which actually supports his finding. Court Doc. 21 at 8-18;
Court Doc. Hynek further claims that the ten pieces of evidence
disregarded by the ALJ were not shown by a preponderance of the
evidence to have been obtained by “similar fault.” Court Doc. 21 at 1820; Court Doc. 30 at 10-11. He argues that the ALJ failed to give the
specific reasons for disregarding the evidence that he was required to
give by SSR 00-2p. Court Doc. 21 at 18; Court Doc. 30 at 10.
Fourth, Hynek argues that there is not substantial evidence to
support the ALJ’s finding that Hynek is not disabled. Court Doc. 21 at
20-23; Court Doc. 30 at 11-14. Hynek maintains that the ALJ’s
favorable 2005 decision is entitled to res judicata preclusive effect in
subsequent proceedings. Court Doc. 21 at 20-21; Court Doc. 30 at 11-13.
Relying on Patti v. Sachewiker, 699 F.2d 582 (9th Cir. 1982), Hynek
asserts that because of the prior favorable decision, the burden shifts to
the Commissioner to prove that there has been a change in Hynek’s
condition. Court Doc. 21 at 20-21; Court Doc. 30 at 11. Hynek argues
that the Commissioner has not met this burden, because the medical
expert in 2009 improperly re-interpreted the original evidence and
because Hynek’s mental health conditions have remained unchanged.
14

Court Doc. 21 at 20-23; Court Doc. 30 at 11-14.
Finally, Hynek asserts that the Commissioner continues to
deprive him of his full right to an appeal, because the administrative
file remains incomplete. Court Doc. 21 at 23-25; Court Doc. 30 at 14.
Hynek claims that the notice letter from the ALJ, Hynek’s written
objections to the investigative material, and the ALJ’s 2005 decision are
missing from the file.1 Court Doc. 21 at 24-25; Court Doc. 30 at 14.
Hynek argues that without these documents, the Commissioner has
failed to meet his burden to provide a complete transcript and has
deprived Hynek of a meaningful chance to have the ALJ’s actions fully
reviewed. Court Doc. 21 at 25.
B.

The Commissioner=s Arguments

The Commissioner makes three arguments. First, the
Commissioner argues that this Court does not have jurisdiction to
review the Commissioner’s decision to reopen Hynek’s 2005 favorable
decision. Court Doc. 28 at 2-7. Citing Califano v. Sanders, 430 U.S. 99,

Hynek also claimed that the surveillance videos were missing from the
file, but those were filed by the Commissioner between Hynek’s motion
and his reply brief. Court Doc. 24.
15

1

107-108 (1977), the Commissioner argues that this Court can only
review the ALJ’s decision concerning whether and what evidence was
tainted by “similar fault,” and whether Hynek is disabled – not the
ALJ’s discretionary decision that the case should be reopened because of
a suspicion of “similar fault.” Court Doc. 28 at 4-5. The Commissioner
maintains that because the decision to reopen is discretionary it is not a
reviewable “final decision.” Id. at 6.
Second, the Commissioner argues that the ALJ’s decision that
certain evidence was tainted by similar fault was reasonable. Id. at 712. As part of this argument, the Commissioner asserts that it was
reasonable for the ALJ to believe Hynek’s signed confession, and that it
was reasonable for the ALJ to connect Hynek’s incorrect and incomplete
statements to particular pieces of evidence that the ALJ found were
tainted by similar fault. Id.
Third, the Commissioner argues that substantial evidence
supported the ALJ’s finding that Hynek was not disabled. Court Doc.
28 at 13-18. As part of this argument, the Commissioner maintains
that the 2005 decision is not entitled to preclusive effect. Court Doc. 28
at 14-16. The Commissioner claims that res judicata, while sometimes
16

applied to administrative determinations in the Ninth Circuit, does not
apply to redeterminations of initial cases, such as Mr. Hynek’s. Id.
The Commissioner maintains that, even if res judicata applies, the
evidence and circumstances related to the reopening of Hynek’s case
were sufficiently changed from the initial determination for the prior
finding to have no preclusive effect. Court Doc. 28 at 16-18. The
Commissioner points to Dr. Veraldi’s changed opinion and Hynek’s own
admissions for support. Id. The Commissioner also argues that various
medical findings and opinions within the record support the ALJ’s
finding that Hynek is not disabled. Court Doc. 28 at 17-18.
VI.

DISCUSSION
The primary issues before the Court are whether substantial

evidence supports the ALJ=s decision, and whether the ALJ=s decision is
free of legal error. Applying controlling Ninth Circuit authority, the
Court concludes that the ALJ=s decision is based on substantial
evidence and contains no legal error. For the reasons set forth below,
the Court finds Hynek’s arguments unpersuasive.
A.

The Court can proceed on the current record.

Hynek raises two threshold issues: the adequacy of the notice he
17

was given that his case would be reopened (Court Doc. 21 at 6-8; Court
Doc. 30 at 4-5) and the incomplete nature of the record provided by the
Commissioner (Court Doc. 21 at 23-25; Court Doc. 30 at 14). The Court
finds neither issue dispositive, for the following reasons.2
First, Hynek relies heavily on Wyatt v. Barnhart to assert that he
is entitled to notice containing the “specific rationale” for reopening his
case. 349 F.3d 983 (7th Cir. 2003); Court Doc. 21 at 6-8; Court Doc. 30
at 4-5. There are several problems with this reliance, however. First,
Wyatt is a Seventh Circuit case, and Hynek provides no similar
authority from the Ninth Circuit.
Second, the Commissioner in Wyatt defended the decision to
reopen based on evidence that was not before the ALJ when the case
was reopened. 349 F.3d at 984. Here, it is clear that the decision to
reopen was based on evidence the ALJ possessed when he reopened

2 For

purposes of this discussion, the Court concludes that it does have
jurisdiction to review Hynek’s arguments regarding the decision to
reopen his case. See Mines v. Sullivan, 981 F.2d 1068, 1069-71 (9th Cir.
1992); Slone v. Sec’y of Health & Human Services, 825 F.2d 1081, 108384 (6th Cir. 1987); Cieutat v. Bowen, 824 F.2d 348, 358 n.5 (5th Cir.
1987).
18

Hynek’s case. In his introductory remarks at the 2009 hearing, the ALJ
noted that the purpose of the hearing was to determine whether “there
was any type of fraud or something called similar fault that was
committed on your part”, further noting “I believe at this point you’ve
had the opportunity to see all the information or at least that’s been
made available” (Tr. 1388), including the video surveillance tapes, the
statements from Hynek’s neighbors, and Hynek’s statement. Tr. 1392.
When queried if she had any comments about the ALJ’s proposed
procedures, Hynek’s attorney raised no issues regarding the notice
Hynek received or Hynek’s ability to prepare for the hearing. Id. at
1392-93.3
Additionally, in Wyatt the Court found that there was no evidence
that Wyatt did anything wrong. Here, there is evidence, albeit

3 The

Court also notes that, although the letter is not part of the record,
the ALJ stated in his opinion that a letter, dated June 30, 2008, nearly
one year before the 2009 hearing, was mailed to Hynek and explained
that “new evidence received from the Department of Veterans Affairs
Office of Inspector General and the Social Security Administration’s
Office of Inspector General raised serious issues that might affect the
previously favorable decision and the claimant’s entitlement to Social
Security disability benefits.” Tr. at 21.
19

disputed, from the VA and SSA investigations suggesting that Hynek
misrepresented his capabilities.
Third, Wyatt cites only the SSA Program Operations Manual
System [POMS] for its authority that the ALJ must provide a statement
of “specific rationale” for reopening. 349 F.3d at 984. Although agency
statements or manuals can be considered as persuasive authority, they
do not impose judicially enforceable duties. Conde-Rodriguez v. Adler,
2010 WL 2353522, * 10 (E.D. Cal. 2010) (citing Warre v. Commissioner
of Social Sec. Admin., 439 F.3d 1001, 1005 (9th Cir.2006); Lowry v.
Barnhart, 329 F.3d 1019, 1023 (9th Cir.2003)).
The only other law that Hynek has provided, for his proposition
that a “specific rationale” must be provided to reopen, is a regulation
that governs the Medicare Part B program. Court Doc. 21 at 6 (citing
42 C.F.R. § 405.842). Hynek’s brief does not explain how that
regulation applies to his case. Hynek’s argument that the ALJ failed to
give notice containing a “specific rationale” for reopening is, therefore,
unpersuasive.

20

The other piece of evidence missing from the record provided by
the Commissioner is the ALJ’s 2005 decision. Hynek acknowledges,
however, that the ALJ had the 2005 decision at the time he made his
2009 decision. Court Doc. 21 at 25, citing Tr. 21, 29-33, and 41-43. The
ALJ’s 2005 decision is discussed at some length in his 2009 decision.
The ALJ's written decision therefore effectively summarizes the missing
2005 decision. See Andres v. Bowen, 870 F.2d 453, 455 (8th Cir. 1989).
Also, the Court has the complete transcript of the 2005 hearing. Tr. at
1320-1385. So long as the missing document does not preclude effective
judicial review, then the court may proceed without it. See Varney v.
Secretary of Health & Human Services, 846 F.2d 581, 583 (9th Cir.
1988) (superseded on other grounds, Bunnell v. Sullivan, 912 F.2d 1149,
1154 (9th Cir. 1990)). See also Carolyn A. Kubischek, Social Security
Disability: Law and Procedure in Federal Court, § 9:21 Missing or
illegible portions of the record, p. 523 (1994). Most importantly, it is
the 2009 decision that is before this Court for review, not the 2005
decision.

For these reasons, the Court finds that an incomplete record

does not interfere with comprehension of the evidence or the ALJ’s
21

decision to an extent that would hinder fair review. Remand is
therefore not warranted on the ground that the record is incomplete and
the Court can proceed to a substantive review of the ALJ’s ultimate
findings.
B.

Substantial evidence supports the ALJ’s finding
of “similar fault” and ALJ’s rejection of specific
pieces of evidence.

Although the ALJ must make his decision based on a
preponderance of the evidence, see SSR 00-2p, this Court may set aside
an ALJ=s decision only where it is not supported by substantial evidence
or where the decision is based on legal error. Ryan, 528 F.3d at 1198;
42 U.S.C. ' 405(g). The ALJ’s thorough and detailed decision included a
discussion of relevant medical evidence, opinions, and testimony. Tr. at
21-60. The ALJ prefaced this discussion by noting his Acareful
consideration of the all the evidence.@ Tr. at 22. While this declaration
is not proof that the ALJ considered all the available evidence, it does
demonstrate his awareness of his obligation to do so.
In evaluating Hynek’s claims, the ALJ was required to Amake
fairly detailed findings in support@ of his decision that would Apermit
22

courts to review those decisions intelligently.@ Vincent v. Heckler, 739
F.2d 1393, 1394 (9th Cir. 1984) (citation omitted). In doing so, an AALJ
does not need to discuss every piece of evidence@ and Ais not required to
discuss evidence that is neither significant nor probative[.]@ Howard ex
rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003)(internal
quotations and citations omitted).
A reviewing court “must consider the entire record as a whole and
may not affirm simply by isolating a ‘specific quantum of supporting
evidence.’” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (citing
Robins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). But a
court reviews “only the reasons provided by the ALJ in the disability
determination and may not affirm the ALJ on a ground upon which he
did not rely.” Id.
Here, the ALJ reviewed the record and thoroughly explained his
rationale for a “similar fault” finding. Tr. at 26-44. The ALJ’s decision
reviewed the substantial evidence that informed and supported his
conclusion including: Hynek’s testimony at the 2005 hearing (Tr. at 2629); the statements of Hynek’s neighbors (Tr. at 29-30); surveillance
23

videos (Tr. at 30-31); Hynek’s written statement (Tr. at 31-33); and
Hynek’s testimony at the 2009 hearing (Tr. at 33-36). The ALJ did not
ignore Hynek’s objections to the evidence, but discussed and dismissed
them each in turn. Tr. at 36-39. The Court has reviewed all the
evidence cited by the ALJ. The Court finds that the evidence supports
the ALJ’s conclusion that “similar fault” was involved in Hynek’s 2005
application for benefits. This Court finds, therefore, that the ALJ’s
finding of “similar fault” is supported by substantial evidence.
For the reasons stated above, the Court also finds that the ALJ’s
determination that ten specific pieces of evidence were tainted by
“similar fault” is supported by substantial evidence. Tr. at 39-44. The
evidence cited by the ALJ included statements by Mr. and Mrs. Guerin
and the Perros (Tr. at 41), videotapes, memorandums, and reports from
the investigation by OIG (Tr. at 41-42), Hynek’s written statement (Tr.
at 42), and Hynek’s testimony at the 2009 hearing (Tr. at 42-43). The
Court has also reviewed all of that evidence and finds that it supports
the ALJ’s determination. The ALJ’s finding that “similar fault” was
involved in the enumerated evidence, and his decision to disregard it,
24

was therefore supported by substantial evidence.
Beyond the ten listed pieces of evidence, the ALJ’s finding that
Hynek’s testimony about his back, hip, shoulder, arm, and foot pain was
no longer credible after the “similar fault” finding was also supported by
substantial evidence. Tr. at 40-41. SSR 00-2p explains that: “[a]
‘similar fault’ finding concerning a material fact may constitute
evidence to be considered in determining whether there is reason to
believe that ‘similar fault’ was involved with respect to other evidence
provided by the same source, and may justify disregarding other
evidence from that source.” SSR 00-2p, General, ¶ 5. Thus, SSR 00-2p
contemplates that a “similar fault” finding may adversely impact the
credibility of a claimant’s testimony on the whole.
Additionally, an ALJ may, after engaging in the appropriate
analysis, reject a claimant=s subjective testimony about the severity of
symptoms, although he must cite specific, clear, and convincing reasons
for doing so. Lockwood v. Comm’r Soc. Sec.,397 Fed. Appx. 288 (9th Cir.
2010). To assess credibility in this manner, the ALJ may consider
ordinary evaluation techniques, including the claimant=s daily
25

activities. Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996).
However, A[g]eneral findings are insufficient; rather, the ALJ must
identify what testimony is not credible and what evidence undermines
the claimant=s complaint.@ Reddick v. Chater, 157 F.3d 715, 722 (9th Cir.
1998) (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)).
Inconsistencies in testimony may also be factored in such an
assessment. Orn v. Astrue, 495 F.3d 625, 636 (9th Cir. 2007) (citing
Fair, 885 F.2d at 603).
Here, the ALJ gave specific, clear, and convincing reasons for
finding that Hynek’s testimony was not entirely credible, based on the
“similar fault” finding and other factors. Tr. at 40-44. The ALJ
highlighted Hynek’s inconsistent statements and discussed at length
inconsistencies between the medical evidence, surveillance,
investigative evidence, and Hynek’s testimony. Tr. at 40-58. The Court
has reviewed the evidence cited by the ALJ and concludes that the
ALJ’s rejection of Hynek’s testimony about his back, hip, shoulder, arm,
and foot pain was therefore supported by substantial evidence. Thus,
all of the ALJ’s findings concerning “similar fault”, the evidence tainted
26

by it, and his rejection of that evidence, are supported by substantial
evidence and free of legal error.
C.

There is substantial evidence to support the
ALJ’s finding that Hynek was not disabled.

The parties disagree about whether the ALJ’s favorable decision
awarding Hynek benefits in 2005 should be afforded preclusive effect
under principles of res judicata. Court Doc. 21 at 21-23; Court Doc. 28
at 14-16; Court Doc. 30 at 11-14. Although the doctrine of res judicata
applies to administrative decisions, it is applied “less rigidly” in
administrative proceedings than in judicial proceedings. Chavez, 844
F.2d at 693. For example, res judicata may be inappropriate where a
party has presented new facts or new evidence to demonstrate that a
prior determination of disability may have been incorrect. Id.; see also
Gregory v. Bowen, 844 F.2d 664, 666 (9th Cir. 1988) (citing Taylor v.
Heckler, 765 F.2d 872, 876 (9th Cir. 1985)). Res judicata is also
inappropriate where, as here, there is re-determination of benefits,
under § 205(u) of the Social Security Act (42 U.S.C. § 405(u)(1)(a)),
rather than an attack by subsequent litigation on a prior, final

27

determination.4 See, e.g., Lyle v. Sec’y of Health and Human Serv., 700
F.2d 566 (9th Cir. 1983).
Both of the statutes upon which this redetermination is based
indicate that res judicata does not apply here. 42 U.S.C. § 405(u) states
that “[t]he Commissioner of Social Security shall immediately
redetermine the entitlement of individuals to monthly insurance
benefits under this subchapter if there is reason to believe that fraud or
similar fault was involved in the application of the individual for such
benefits.” 42 U.S.C. § 405(u)(1)(A) (2012). The statute thus makes no
mention of res judicata and indicates by its very nature that the
original decision in question be re-examined, without preclusive effect.
Similarly, 20 C.F.R. § 404.998(c) allows an ALJ to reopen “at any
time if … it was obtained by fraud or similar fault.” That regulation

Hynek relies heavily on Patti v. Schweiker, 669 F.2d 582 (9th Cir.
1982) for the proposition that res judicata applies even to a
redetermination. Court Doc. 30 at 12. That case, however, has been
superseded by statute. See 42 U.S.C. § 1382c(a)(4) (“Any determination
made under this paragraph shall be made on the basis of the weight of
the evidence and on a neutral basis with regard to the individual's
condition, without any initial inference as to the presence or absence of
disability being drawn from the fact that the individual has previously
been determined to be disabled”). See Warren v. Bowen, 804 F.2d 1120,
1121 (9th Cir. 1986).
28

4

makes no mention of deference to a prior determination, and indicates
by its very existence that an original determination can be revaluated
where “similar fault” is involved. The Court finds, therefore, that res
judicata does not apply to the favorable 2005 decision.
The remaining question is whether the ALJ’s 2009 determination
is supported by substantial evidence and free of legal error. Just as
with the “similar fault” finding, this Court is limited to reviewing the
ALJ’s disability determination using only the evidence upon which the
ALJ relied. Orn, 495 F.3d at 630. The ALJ discussed Hynek’s physical
symptoms that could be reasonably accepted as consistent with the
objective medical evidence, citing extensively to the medical record. Tr.
at 47-51; 54-57. The ALJ also discussed the mental impairments Hynek
alleged, and the medical evidence and opinions concerning them. Tr. at
51-55. The ALJ compared at length the opinions of various mental
health professionals – both doctors and counselors – and reviewed their
various opinions regarding Hynek’s mental conditions. Tr. at 51-54.
In his determination, the ALJ referenced the records, findings,
and opinions of six different doctors: Dr. Dietz (Tr. at 48), Dr. Wendt
(Tr. at 49), Dr. Whitworth (Tr. at 51), Dr. Gumm (Tr. at 52), Dr. Veraldi
29

(Tr. T 52), and Dr. Teal (Tr. at 55). Relying on all of this evidence from
the record, the ALJ found that Hynek is capable of light, unskilled
work, and therefore is ineligible for adult disability benefits. Tr. at 4458.
The Court has reviewed these medical records cited by the ALJ.
The Court finds that they support the ALJ’s conclusion that Hynek is
not disabled. This Court finds, therefore, that the ALJ’s decision is
supported by substantial evidence.
VII.

CONCLUSION
The ALJ’s decision was based on substantial evidence from the

record and contained no legal error. For these reasons,
IT IS ORDERED that:
(1)

The Commissioner=s motion for summary judgment (Court
Doc. 27) is GRANTED; and

(2)

Hynek=s motion for summary judgment (Court Doc. 13) is
DENIED.

The Clerk of Court is directed to enter judgment accordingly.

30

DATED this 13th day of February, 2012.

/s/ Carolyn S. Ostby
United States Magistrate Judge

31