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Reese v. Colvin

United States District Court, Ninth Circuit

December 11, 2013

CHERIE REESE, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

REPORT AND RECOMMENDATION

BRIAN A. TSUCHIDA, Magistrate Judge.

Cherie Reese appeals the denial of her benefits applications. She contends the ALJ erred by improperly (1) discounting her credibility, and (2) rejecting the opinion of her treating physician that she is disabled. Dkt. 11. As discussed below, the ALJ properly discounted Ms. Reese's credibility but erred in rejecting the treating physician's opinion, Accordingly, the Court recommends the case be REVERSED and REMANDED for further administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g).

BACKGROUND

Ms. Reese suffered a head injury on March 5, 2006, and filed benefits applications alleging disability as of that date. The parties agree the ALJ's December 27, 2012 decision, which found Ms. Reese not disabled, is the Commissioner's final decision. Utilizing the five-step disability evaluation process, 20 C.F.R. §§ 404.1520, 416.920, the ALJ found:

Step one: Ms. Reese had not engaged in substantial gainful activity from March 5, 2006, through her date last insured of December 31, 2011.
Steps two and three: Somatoform disorder, migraine headaches controlled by medication, and asthma were severe impairments that did not meet or equal the requirements of a listed impairment. See 20 C.F.R. Part 404, Subpart P. Appendix 1.
Residual Functional Capacity: Ms. Reese could perform a full range of work at all exertional levels but with the following nonexertional limitations: she can stand and work for about 6 hours and sit for 6 hours in an 8 hour workday with normal breaks; she can perform work in an environment in which noise is no more than moderate, and in which there is no exposure to concentrated vibration (such as from heavy machinery) and no exposure to hazards such as unprotected heights and heavy machinery; she can perform work in which her pace can vary through an 8 hour shift, but not so much that she will fail to meet ordinary production or accomplishment expectations for that shift; she can perform work in which dusts, gases, fumes, odors, and poor ventilation are environmental factors that are shown in the Dictionary of Occupational Titles as not present; she can perform work that permits the use of eye glasses that are dark enough to filter some fluorescent lighting, but not so dark as to interfere with the ability to see well enough to perform indoor tasks.
Steps four and five: Ms. Reese could perform her past work, and even if she could not, there are other jobs in the national economy that she would be able to perform.

Tr. 11-21.

DISCUSSION

A. The ALJ did not err in finding Ms. Reese less than fully credible

Ms. Reese challenges the ALJ's adverse credibility finding. Where, as here, there is no evidence of malingering, an ALJ must provide clear and convincing reasons to reject a claimant's testimony. Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007).

The ALJ discounted Ms. Reese's credibility because her claim of disability was inconsistent with her conduct. Tr. 17. Among other things, the ALJ noted that she completed a real estate course, "believed that she was mentally competent enough to borrow money from her friends to successfully invest their money in real estate, " and testified that "her investment plan failed not because of her impairments, but because her friends are using their money to invest for themselves." Id. ; see also Tr. 37-38, 50, 52-53.

An ALJ may discount a claimant's credibility based on inconsistencies between the claimant's testimony and conduct. Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). This is what the ALJ did here. Ms. Reese argues, however, that the ALJ's finding is not supported by substantial evidence because the real estate course was not actually inconsistent with her claimed limitations given that it "was essentially an infomercial course where she listened to tapes, " Dkt. 13 at 2, and she testified that she was attempting to find employment where she could work at her own pace, Dkt. 11 at 6. Ms. Reese may offer a reasonable interpretation of the record, but the ALJ's interpretation was also reasonable. Even considering that the real estate course was not formal training to become licensed in real estate and that Ms. Reese was attempting to work at her own pace, it was reasonable for the ALJ to look at the record as a whole and find that her completion of the course, her plan to invest in real estate, and her contact with wealthy friends to ask for investment money were inconsistent with her claim that ...


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