Evan Austin v. Andrew Saul ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 22 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EVAN ROY AUSTIN, No. 18-35183
Plaintiff-Appellant, D.C. No. 1:16-cv-02035-JO
v.
MEMORANDUM*
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Robert E. Jones, District Judge, Presiding
Submitted May 14, 2020**
Portland, Oregon
Before: BYBEE and VANDYKE, Circuit Judges, and CHHABRIA,*** District
Judge.
Concurrence in part and dissent in part by Judge VANDYKE
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Vince Chhabria, United States District Judge for the
Northern District of California, sitting by designation.
Appellant Evan Roy Austin appeals the district court’s ruling affirming the
denial of his application for disability benefits. We affirm in part, reverse in part,
and remand with instructions to remand to the agency for further proceedings.
1. Although several medical professionals offered written opinions about
Austin’s limitations, Dr. Francis was the only one to testify at either of the two
hearings. Dr. Francis opined that Austin should be limited to occasional handling,
feeling, and fingering—an opinion that supports Austin’s disability claim. But the
ALJ did not discuss this opinion, which the Commissioner concedes is error. The
Commissioner argues that this court can infer the ALJ’s reasoning for not
discussing Dr. Francis’s opinion, but the ALJ’s decision does not permit any
inference about why Dr. Francis was left unmentioned.
2. The ALJ gave only partial weight to a third-party report submitted by
Austin’s son, Kamryn Larsen, reasoning that Larsen had relied heavily on Austin’s
“less than fully credible subjective complaints.” At least as it relates to his
description of Austin’s physical limitations, the conclusion that Larsen relied
heavily on Austin’s subjective complaints is belied by the report and finds no other
support in the record. Larsen was twenty-two years old at the time, lived with his
father, observed him every day, and was in a position to provide a first-hand
account of the deterioration of his father’s condition. Thus, without identifying
some other germane reason to discount Larsen’s description of Austin’s physical
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limitations, the ALJ was required to treat it as bolstering the credibility of Austin’s
testimony. See Dodrill v. Shalala, 12 F.3d 915, 918–19 (9th Cir. 1993); see also
Diedrich v. Berryhill, 874 F.3d 634, 640 (9th Cir. 2017); Nguyen v. Chater, 100
F.3d 1462, 1467 (9th Cir. 1996).
3. As for Austin’s own credibility, the ALJ was required to articulate
specific, clear, and convincing reasons for discounting it unless the record
contained affirmative evidence of malingering. See Molina v. Astrue, 674 F.3d
1104, 1112 (9th Cir. 2012). Some aspects of the ALJ’s credibility determination
regarding the severity of Austin’s symptoms find support in the record and were
adequately explained—such as the finding that Austin exaggerated his dependence
on crutches. But several of the reasons given by the ALJ for discounting Austin’s
credibility were either contradicted or unsupported by the record. For example, the
adverse credibility finding was based in part on the assertion that Austin had opted
against surgery on his right arm despite having been “very happy with the results”
of a comparable surgery on his left arm. But the record demonstrates that while
Austin was initially happy with the surgery, he soon soured on it because his pain
returned. This explains his decision to take a more conservative approach to the
other arm and renders that decision an improper basis for an adverse credibility
finding. See Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir.
2008); Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). The ALJ also cited
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the fact that Austin’s neurological exam results had been normal, but the record
does not support a conclusion that normal exam results are inconsistent with
Austin’s claimed symptoms. See Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir.
2014); see also Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995), as amended
(Apr. 9, 1996). Nor is the fact that Austin actively cares for his five-year-old
daughter inconsistent with his testimony that his limitations prevent him from
working a full day. See Trevizo v. Berryhill, 871 F.3d 664, 682 (9th Cir. 2017);
Garrison v. Colvin, 759 F.3d 995, 1016 (9th Cir. 2014); Vertigan v. Halter, 260
F.3d 1044, 1050 (9th Cir. 2001).
4. The Commissioner fleetingly argues that the record contains affirmative
evidence of malingering, thereby absolving the ALJ of the obligation to articulate
clear and convincing reasons for an adverse credibility finding. See Carmickle, 533
F.3d at 1160. For this proposition the Commissioner cites the report of Dr.
Sorweide, which makes brief reference to “signs of malingering” without any
accompanying explanation. But the ALJ appears to have rejected this view—she
did not cite Dr. Sorweide’s statement in connection with her adverse credibility
determination, declined to give his report full weight, and rejected his assertion
that Austin had no limitations, concluding instead that Austin had severe
impairments that impose more than minimal limitations on his ability to work. We
thus do not consider Dr. Sorweide’s unexplained notation to constitute affirmative
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evidence of malingering. Nor do we equate a claimant’s possible exaggerations
regarding the severity of his symptoms with affirmative evidence of malingering.
5. The ALJ did not err in discounting the opinion of Nurse Practitioner
Harrison. Under the pre-2017 Social Security regulations that govern this case, the
ALJ could discount the opinion of a nurse practitioner like Harrison for any
“germane” reason. See Ghanim, 763 F.3d at 1161; 20 C.F.R. § 404.1527. The ALJ
reasoned that Harrison’s physical medical source statement identified limitations
significantly more severe than the limitations evidenced elsewhere in the medical
record—including Harrison’s own treatment notes. This was a germane reason to
discount Harrison’s opinion. See Molina, 674 F.3d at 1112.
6. Substantial evidence supports the ALJ’s determination that Austin
previously worked as a garage supervisor. The vocational expert testified that
Austin performed this job, and Austin told the agency that “most” of his time in his
prior job was spent in a supervisory role. See Stacy v. Colvin, 825 F.3d 563, 570
(9th Cir. 2016); see also Valencia v. Heckler, 751 F.2d 1082 (9th Cir. 1985).
7. The errors discussed above are significant enough, and sufficiently
intertwined with the aspects of the ALJ’s analysis that find support in the record,
that we cannot conclude they were harmless. Brown-Hunter v. Colvin, 806 F.3d
487, 494 (9th Cir. 2015); Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015).
Austin is awarded costs on appeal.
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AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
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FILED
Evan Austin v. Andrew Saul, No. 18-35183 JUL 22 2020
MOLLY C. DWYER, CLERK
VANDYKE, Circuit Judge, concurring in part and dissenting in part. U.S. COURT OF APPEALS
I concur with paragraphs five and six of the panel’s memorandum disposition,
affirming the ALJ’s decision to discount Nurse Harrison’s testimony and agreeing
the ALJ correctly defined Austin’s previous position as a garage supervisor. I
respectfully dissent as to the remainder because Dr. Sorweide’s observed “signs of
malingering,” combined with Austin’s obvious embellishments, constituted
evidence of malingering such that we should apply a more deferential standard of
review to the ALJ’s treatment of Austin’s testimony. Applying that standard, we
should affirm the ALJ’s denial of Austin’s disability benefits.
Our review of the ALJ’s decision is generally under the deferential
“substantial evidence” standard, but where an ALJ rejects a claimant’s testimony
about the severity of his symptoms, she must provide “clear and convincing” reasons
“[u]nless there is affirmative evidence showing that the claimant is
malingering.” Reddick v. Chater, 157 F.3d 715, 720, 722 (9th Cir. 1998) (emphasis
added) (citation omitted). Ninth Circuit precedent does not necessarily require an
explicit finding of malingering, just “affirmative evidence” of it. Valentine v.
Comm’r Soc. Sec. Admin., 574 F.3d 685, 693 (9th Cir. 2009) (citation omitted); see
also Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001).
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I diverge from the majority in this case because I believe the review of the
ALJ’s consideration of Austin’s testimony should be for “substantial evidence”
because of the affirmative evidence of malingering in the record. The only
independent examining physician, Dr. Sorweide, directly stated that Austin “shows
signs of malingering.” The ALJ cited this observation in her opinion. The ALJ did
give Dr. Sorweide’s opinion “partial weight,” but only tempered Dr. Sorweide’s
conclusion that Austin could work “without physical limitations” because Austin’s
“impairments would reasonably account for at least some limitations.” That is not
inconsistent with malingering; indeed, a person who is malingering typically has
some real symptoms, which he or she exaggerates.
In addition to Dr. Sorweide’s opinion, the ALJ’s credibility analysis pointed
to clear exaggerations in Austin’s testimony that were belied by other evidence in
the record. Austin testified that his pain was so severe he was on crutches most of
the time between 2009 and 2013, but the ALJ cited to medical evidence from 2012
which indicated Austin had no issues walking. The record also contains evidence
from 2009, 2011, and 2015 that Austin was capable of walking without assistance.
This led the ALJ to conclude that Austin’s testimony about the “intensity ... of these
symptoms [was] not entirely credible” and “well in excess of what is demonstrated
in the medical evidence of record.” In other words, she found him not credible
specifically because she believed he exaggerated his pain.
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This is affirmative evidence of malingering. Our standard of review for the
ALJ’s treatment of Austin’s testimony should thus be for “substantial evidence,”
rather than requiring “clear and convincing” reasons. Reddick, 157 F.3d at 720, 722.
The ALJ’s detailed comparison of Austin’s testimony regarding his limitations to
evidence in the record (describing his continuing self-employment and ability to
relieve some of his pain with ibuprofen) provided the required “substantial
evidence” to properly discount his testimony. See Molina v. Astrue, 674 F.3d 1104,
1113 (9th Cir. 2012) superseded in part on other grounds by 20 C.F.R. § 404.1502
(“[Capacity for work demonstrated by daily activities] may be grounds for
discrediting the claimant’s testimony to the extent that they contradict claims of a
totally debilitating impairment.”).
Once established that the ALJ validly discounted Austin’s testimony, her
omission of Dr. Francis’s opinion and her decision to only partially credit Austin’s
son’s testimony were harmless errors. See id. at 1115 (“[A]n ALJ’s error is harmless
where it is ‘inconsequential to the ultimate nondisability determination.’”) (citation
omitted). The ALJ accounted for similar limitations presented by Dr. Francis and
Austin’s son in a hypothetical she posited to the vocational expert, asking the expert
to identify jobs for those with only “occasional” use of the right hand. The ALJ
further considered testimony that one job (“greeter”) was available for persons with
only “occasional” use of both hands.
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“We will affirm the ALJ’s determination of [petitioner’s residual functional
capacity (RFC)] if the ALJ applied the proper legal standard and [the] decision is
supported by substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th
Cir. 2005). Here, the ALJ incorporated the vocational expert’s responses to both
hypotheticals in her determination of Austin’s RFC and appropriately supported a
finding of “not disabled.” Any lack of attribution or weight given to specific
testimony from either Dr. Francis or Austin’s son was harmless to the overall result.
Because I would affirm the ALJ’s denial of Austin’s application for disability
benefits, I respectfully dissent.
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