Decker v. Berryhill

Filing 11

ORDER Affirming the Commissioner's Decision to Deny Benefits by Judge Theresa L Fricke. (TW)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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JULIE L. D.,
Case No. 3:18-cv-05099-TLF
Plaintiff,

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v.
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NANCY A. BERRYHILL, Deputy
Commissioner of Social Security for
Operations

ORDER AFFIRMING THE
COMMISSIONER’S DECISION TO
DENY BENEFITS

Defendant.

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Plaintiff appeals the Commissioner’s denial of her application for disability insurance

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benefits. The parties have consented to have this matter heard by the undersigned Magistrate

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Judge. 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73; Local Rule MJR 13. For the

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reasons set forth below, the Commissioner’s decision is affirmed.

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PROCEDURAL BACKGROUND

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On May 8, 2015, plaintiff applied for disability insurance benefits, alleging she became
disabled beginning November 22, 2014. Dkt. 6, Administrative Record (AR) 15. The

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ORDER AFFIRMING THE COMMISSIONER’S DECISION
TO DENY BENEFITS - 1

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Commissioner denied her application on initial administrative review and on reconsideration. Id.

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Following a hearing, an administrative law judge (“ALJ”) employed the Commissioner’s

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five-step sequential evaluation process to find plaintiff could perform other jobs existing in

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significant numbers in the national economy at step five of that process, and therefore that she

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was not disabled at that step. AR 15-23.

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Plaintiff seeks reversal of the ALJ’s decision and remand for further administrative

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proceedings, arguing the ALJ erred in discounting her credibility concerning her subjective

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complaints. For the reasons set forth below, the Court disagrees that the ALJ erred as alleged,

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and therefore affirms the ALJ’s decision.
STANDARD OF REVIEW

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The Court will uphold an ALJ’s decision unless it is: (1) based on legal error; or (2) not

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supported by substantial evidence. Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017).

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Substantial evidence is “‘such relevant evidence as a reasonable mind might accept as adequate

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to support a conclusion.’” Trevizo v. Berryhill, 871 F.3d 664, 674 (9th Cir. 2017) (quoting

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Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988)). This requires

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“more than a mere scintilla,” though “less than a preponderance” of the evidence. Id. (quoting

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Desrosiers, 846 F.2d at 576).

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The ALJ is responsible for determining credibility, and for resolving any conflicts or

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ambiguities in the record. Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th

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Cir. 2014). If more than one rational interpretation can be drawn from the evidence, then the

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Court must uphold the ALJ’s interpretation. Trevizo, 871 F.3d at 674-75. That is, where the

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evidence is sufficient to support more than one outcome, the Court uphold the decision the ALJ

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made. Carmickle v. Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1165 (9th Cir. 2008). The Court,

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ORDER AFFIRMING THE COMMISSIONER’S DECISION
TO DENY BENEFITS - 2

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however, may not affirm by locating a quantum of supporting evidence and ignoring the non-

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supporting evidence. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007).

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The Court must consider the administrative record as a whole. Garrison v. Colvin, 759

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F.3d 995, 1009 (9th Cir. 2014). The Court also must weigh both the evidence that supports, and

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evidence that does not support the ALJ’s conclusion. Id. The Court may not affirm the decision

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of the ALJ for a reason upon which the ALJ did not rely. Id. at 1010. Rather, only the reasons the

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ALJ identified are considered in the scope of the Court’s review. Id.

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DISCUSSION
Unless there is “affirmative evidence” of malingering, Garrison, 759 F.3d at 1015, the

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ALJ may discredit a claimant’s symptom testimony “only by offering specific, clear and

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convincing reasons for doing so.” Trevizo, 871 F.3d at 678. “General findings are insufficient;

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rather, the ALJ must identify what testimony is not credible and what evidence undermines the

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claimant's complaints.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (quoting (Lester,

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81 F.3d at 834). In doing so, the ALJ may use “ordinary techniques of credibility evaluation,”

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such as inconsistencies in the claimant’s statements or between the claimant’s statements and

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conduct, unexplained or inadequately explained failure to seek or follow treatment, and the

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claimant daily activities. Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012).

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The credibility determination is not an examination of the claimant’s overall “character”,

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but rather an assessment of the claimant’s testimony and other statements “designed to ‘evaluate

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the intensity and persistence of symptoms after.” Trevizo, 871 F.3d at 678 n.5 (warning that the

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inquiry should not “delve into wide-ranging scrutiny of the claimant’s character and apparent

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truthfulness”) (quoting and citing SSR 16-3p, 2017 WL 5180304).

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ORDER AFFIRMING THE COMMISSIONER’S DECISION
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The ALJ discounted plaintiff’s credibility because “[t]he medical records do not reveal

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any twelve-month period of disabling impairments.”1 AR 19. An ALJ may discount a claimant’s

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testimony on the basis that it is unsupported by objective medical evidence. Burch v. Barnhart,

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400 F.3d 676, 680 (9th Cir. 2005). Plaintiff does not challenge this basis for finding her to be less

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than fully credible, and the record supports it. See AR 382-87.

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Plaintiff contends the ALJ provided only one other reason for discounting her testimony -

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- inconsistency with her daily activities -- and that reason is not supported by the record. Burch,

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400 F.3d at 680 (an ALJ may not discount claimant testimony solely on the basis that it is not

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supported by objective medical evidence).

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“Engaging in daily activities that are incompatible with the severity of symptoms alleged

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can support an adverse credibility determination.” Ghanim v. Colvin, 763 F.3d 1154, 1165 (9th

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Cir. 2014). An ALJ also may rely on a claimant’s daily activities to discount the claimant’s

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credibility if the claimant is able to spend a substantial part of his or her day engaged in activities

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that are transferable to a work setting. Id.

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The ALJ found that despite her “drastic” complaints that she cannot independently tend

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to her daily activities, plaintiff attended school while receiving unemployment benefits, which

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indicated that she “likely held herself out as intending to return to work when she completed her

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education.” AR 20. But the record does not clearly show plaintiff’s school attendance involved

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activities that are transferrable to a work setting. AR 50, 55-57. Plaintiff testified that she was

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able to attend school online from her home and proceed at her own pace, and that there were “a

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few quarters where [she] barely passed.” AR 56-57. Nor can such “attendance” necessarily be

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considered to be inconsistent with plaintiff’s other testimony.

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See Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (a claimant must show he or she has a medically
determinable impairment that can be expected to result in death or that has lasted or can be expected to last for
continuous period of not less than twelve months).

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ORDER AFFIRMING THE COMMISSIONER’S DECISION
TO DENY BENEFITS - 4

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The Court agrees the ALJ also erred in relying on plaintiff’s receipt of unemployment

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benefits. Receiving unemployment benefits “can undermine a claimant’s alleged inability to

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work fulltime.” Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161-62 (9th Cir. 2008).

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But where, as here, the record does not show plaintiff held herself out as being available for full-

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time work, this is not a valid basis for discounting her testimony. Id.

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Plaintiff is incorrect that the ALJ provided no other legitimate basis for discounting her

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credibility. The ALJ pointed to the “extremely minimal” treatment notes for the relevant time

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period – the period after plaintiff’s alleged onset date of disability. AR 20; see also AR 19

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(noting the “minimal records” from early 2015), 279, 281, 283-90, 365, 375; Burch, 400 F.3d at

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681 (the fact that the claimant’s pain was not sufficiently severe to motivate her to seek

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treatment, even if she had sought some treatment, was powerful evidence regarding the extent to

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which she was in pain).

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Even if some of the reasons for discounting a claimant’s credibility are improper, this

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does not render an ALJ’s credibility determination invalid, so long as that determination is

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supported by substantial evidence in the record. Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d

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1190, 1197 (9th Cir. 2004); see also Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227

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(9th Cir. 2009) (while one of the ALJ’s reasons was improper, he presented other valid reasons,

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each with “ample support in the record”).

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Here, the ALJ provided at least two valid reasons for discounting plaintiff’s credibility:

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inconsistency with the objective medical evidence and lack of consistent treatment. The ALJ thus

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did not err in finding plaintiff not fully credible.

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CONCLUSION
The ALJ did not err in discounting plaintiff’s credibility; the Commissioner’s decision to

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ORDER AFFIRMING THE COMMISSIONER’S DECISION
TO DENY BENEFITS - 5

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deny benefits is AFFIRMED.
Dated this 19th day of December, 2018.

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A

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Theresa L. Fricke
United States Magistrate Judge

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ORDER AFFIRMING THE COMMISSIONER’S DECISION
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