Opinion · Court of Appeals for the Ninth Circuit

Felipe Verduzco v. Kenneth S. Apfel, Commissioner of Social Security

188 F.3d 1087

Type: Opinion
Court: Court of Appeals for the Ninth Circuit
Jurisdiction: Federal
Date: 1999-08-31
Topic: general

finding that an ALJ properly discounted a claimant’s testimony when the ALJ relied on the claimant’s inconsistent statements 4 about alcohol use | finding applicant’s testi- mony not credible where there was evidence of malingering and where the testimony and “various statements regarding his drinking were not consistent” | noting that a claimant’s inconsistent testimony is relevant to the 28 testimony’s credibility | noting that a claimant’s inconsistent testimony is 13 relevant to the testimony’s credibility | noting that “ALJs . . . are presumed to be unbiased,” and that the party asserting bias has the burden of rebutting this presumption by showing some “specific reason for disqualification” (quoting Schweiker v. McClure, 456 U.S. 188, 195 (1982)) | finding a claimant’s use of an assistive device without clear medical indication as one 20 valid credibility consideration | conflicting or inconsistent testimony concerning alcohol or 21 drug use can contribute to an adverse credibility finding | conflicting or inconsistent testimony 6 concerning alcohol or drug use can contribute to an adverse credibility finding | conflicting or inconsistent testimony concerning alcohol or 17 drug use can contribute to rejecting a claimant’s symptom statements | conflicting or inconsistent testimony 28 concerning alcohol or drug use can contribute to an adverse credibility finding | considering a claimant’s use of an assistive device without clear medical 19 indication as one valid credibility consideration | finding it was proper for the ALJ 2 to rely on his observations of the plaintiff at the hearing | finding no error where the ALJ did not proceed beyond step two after finding that the claimant’s impairments were not severe | affirming an ALJ’s reliance on claimant’s inconsistent statements about alcohol use to 15 reject his testimony | finding a claimant’s use of an assistive device without clear medical 8 indication as one valid credibility consideration | affirming an ALJ’s reliance on 11 inconsistent statements about alcohol use to reject claimant’s testimony | finding inconsistent statements regarding drinking was a clear and 8 convincing reason to reject a claimant’s testimony | affirming 2 ALJ’s discounting of plaintiff’s testimony where plaintiff’s “various statements 3 regarding his drinking were not consistent” | reasoning that a diagnosis alone does not establish severity | upholding the 23 ALJ’s finding that Plaintiff’s testimony and prior statements were inconsistent | relying on inconsistent statements about alcohol use to 20 reject claimant’s testimony | finding the ALJ offered a clear and convincing reason for discrediting the claimant's pain testimony because the claimant 'used a cane at the hearing, although none of his doctors had ever indicated that he used or needed to use an assistive device in order to walµ' | inconsistent 6 testimony about symptoms is clear and convincing reason to discount subjective 7 allegations | Even if the evidence could reasonably support 9 The updated records are found in the Administrative Record at Exhibits 12F-16F. (AR 465-612 | inconsistent testimony about symptoms is a 2 clear and convincing reason to discount subjective allegations | “Although the appellant clearly [has] diabetes, high blood pressure, 9 and arthritis, there is no evidence to support his claim that those impairments are ‘severe.’” | inconsistency between claimant’s testimony and claimant’s actions cited as a clear and convincing reason for rejecting claimant’s 16] testimony | ALJ properly may discount a 9 || claimant’s subjective assertions that are inconsistent with the observations of third 10 |] parties | inconsistences in a 21| claimant’s statements were among the “clear and convincing reasons” for discounting claimant’s credibility | “Although the appellant 11 clearly [has] diabetes, high blood pressure, and arthritis, there is no evidence to 12 support his claim that those impairments are ‘severe.’” | “Although

Citator

Cited by: 163 opinions

ORDER

The memorandum disposition filed May 11, 1999, is redesignated as an authored opinion by Judge Reed.

OPINION

REED, District Judge:

Felipe Verduzco appeals from the district court’s judgment affirming the Commissioner’s denial of his application for supplemental security income disability benefits. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

The district court’s order affirming the Commissioner’s denial of benefits is reviewed de novo. Morgan v. Commissioner of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir.1999). “Our review of the Commissioner’s decision is ‘essentially the same as that undertaken by the district court.’ ” Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir.1998) (quoting Stone v. Heckler, 761 F.2d 530, 532 (9th Cir.1985)). The Commissioner’s decision to deny benefits will be set aside only if it is based on legal error or is not supported by substantial evidence. Morgan, 169 F.3d at 599.

To determine whether the Commissioner’s decision is supported by substantial evidence, “we must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner’s conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir.1998). Where the evidence may reasonably support more than one interpretation, we may not substitute our judgment for that of the Commissioner. Id. at 720-21. Having reviewed the full administrative record in the instant case, it is clear that the Commissioner’s decision is supported by substantial evidence. None of the appellant’s treating or examining physicians ever indicated that the appellant was disabled. Although the appellant clearly does suffer from diabetes, high blood pressure, and arthritis, there is no evidence to support his claim that those impairments are “severe.”

Verduzco argues that the ALJ displayed impermissible bias. Nothing in the record supports this contention. Although the ALJ’s decision indicates that the ALJ found it hard to believe that Verduzco did not speak more than a little English, having been in the United States for thirty years, the ALJ did not base his decision on this fact. Nothing in the record indicates that the ALJ harbored any prejudice or bias against non-English speakers, Spanish speakers in particular, or even against people who come to the United States and fail to learn English. Verduzco was provided with an interpreter at his hearing, and the transcript of the hearing does not reveal anything to indicate that the ALJ treated Verduzco any differently because he testified through an interpreter. The ALJ’s incredulity in the face of the appellant’s claim not to speak English just reflects the ALJ’s finding that the appellant’s testimony in general was less than entirely truthful. ALJs and other similar quasi-judicial administrative officers are presumed to be unbiased. Schweiker v. McClure, 456 U.S. 188, 195, 102 S.Ct. 1665, 72 L.Ed.2d 1 (1982). “This presumption can be rebutted by a showing of conflict of interest or some other specific reason for disqualification.” Id. The burden of making such a showing rests with the party asserting bias. Id. at 196, 102 S.Ct. 1665. Since Verduzco has failed to present any evidence that the ALJ was *1090 biased, he has obviously failed to meet this burden.

Verduzco also argues that the ALJ improperly disregarded his testimony of excess pain and fatigue. “If a claimant produces objective medical evidence that he suffers from an ailment that could cause pain, ‘the ALJ can reject the claimant’s testimony about the severity of [his] symptoms only by offering specific, clear and convincing reasons for doing so.’ ” Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir.1997) (quoting Smolen v. Chafer, 80 F.3d 1273, 1281 (9th Cir.1996)). Here, the ALJ did offer clear and convincing reasons for rejecting Verduzco’s testimony. The ALJ pointed out several areas in which the appellant’s testimony or behavior was inconsistent with his own statements or actions, as well as with the medical evidence. He noted that Verduzco’s testimony and various statements regarding his drinking were not consistent. Further, the ALJ noted that the appellant had walked slowly and used a cane at the hearing, although none of his doctors had ever indicated that he used or needed to use an assistive device in order to walk. In fact, two doctors had specifically noted that the appellant did not need such a device. The ALJ also noted that the appellant, when asked for his driver’s license at the hearing, “stood up swiftly and took out his wallet from his rear pocket without effort and without apparent discomfort,” despite his apparent difficulty in walking. Thus the ALJ discounted the appellant’s testimony because he found it to be unbelievable in general, not because the extent and severity of the appellant’s pain or fatigue was unsupported by medical evidence. See id.

In addition, Verduzco argues that the ALJ improperly relied on observations of Verduzco made at the hearing. This argument is without merit. Although this Court has disapproved of so-called “sit and squirm” jurisprudence, Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir.1985), the “inclusion of the ALJ’s personal observations does not render the decision improper.” Morgan, 169 F.3d at 600 (citations omitted). The ALJ did not comment on the fact that Verduzco failed to manifest external symptoms of his alleged pain at the hearing, but rather on the fact that Verduzco did exhibit symptoms-symptoms that were inconsistent both with the medical evidence and with other behavior Ver-duzco exhibited at the hearing. Thus the ALJ’s reliance on his observations of Verduzco at the hearing was proper. See Quang Van Han v. Bowen, 882 F.2d 1453, 1458 n. 8 (9th Cir.1989).

Finally, Verduzco argues that his impairments, either singly or in combination, meet or equal a’ listed impairment. However, we do not need to address this argument. The ALJ found that Verduzco’s impairments were not severe, and so never reached the question of whether those impairments equaled a listed impairment. Since we find that there was substantial evidence to support the ALJ’s finding that Verduzco’s impairments were not severe, we do not reach the question of whether those impairments equaled a listed impairment either. See 20 C.F.R. § 404.1520(c).

AFFIRMED.