United States District Court, W.D. Washington, Seattle
REPORT AND RECOMMENDATION
BRIAN A. TSUCHIDA, Magistrate Judge.
Jesus Mejia Olivas seeks review of the denial of his Disability Insurance Benefits application. He contends the ALJ erred by (1) discounting his credibility, (2) discounting lay statements, and (3) failing to call a medical expert to testify regarding the severity of his bipolar disorder during the relevant period. Dkt. 14 at 4. As discussed below, the Court recommends the Commissioner's decision should be AFFIRMED and the case be DISMISSED with prejudice.
Mr. Olivas is currently 47 years old, attended nine years of school in Mexico, and has worked in the United States packing shipment containers, sorting recycling materials, landscaping, as a construction laborer, and as a municipal recreation attendant. On April 14, 2011, he protectively applied for benefits, alleging disability as of November 15, 2005, with a date last insured ("DLI") of December 31, 2009. Tr. 157-58, 174. His application was denied initially and on reconsideration. Tr. 84-88. The ALJ conducted a hearing on May 1, 2012 (Tr. 31-69), and subsequently found Mr. Olivas not disabled. Tr. 19-26. As the Appeals Council denied Mr. Olivas's request for review, the ALJ's decision is the Commissioner's final decision. Tr. 1-6.
THE ALJ'S DECISION
Utilizing the five-step disability evaluation process,  the ALJ found:
Step one: Mr. Olivas had not engaged in substantial gainful activity during the period between his alleged disability onset (November 15, 2005) through his DLI (December 31, 2009).
Step two: Mr. Olivas's bipolar disorder was medically determinable, but not severe. Therefore, he is not disabled.
Mr. Olivas argues that the reasons provided by the ALJ for discounting his credibility were not clear and convincing. See Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (holding that absent evidence of malingering, an ALJ must provide clear and convincing reasons to reject a claimant's subjective description of symptoms). The ALJ indicated that he found Mr. Olivas's testimony to lack credibility because the scant medical evidence (which includes "very few clinical findings, and no formal mental status examinations") during the relevant period shows that he reported a generally stable mood, despite the bipolar disorder. Tr. 22-23. The ALJ also noted that although Mr. Olivas had been diagnosed with bipolar disorder years before his alleged onset date, he had been able to work since the time of that diagnosis. Tr. 23-24.
Mr. Olivas argues that the medical evidence is not as unequivocal as the ALJ found, because it shows that he still experienced exacerbations of his bipolar disorder during the relevant period. Dkt. 16 at 2 (citing Tr. 255, 258, 260, 268, 302, 308). The evidence cited by Mr. Olivas that dates to the relevant period shows that when he experienced an increase in symptoms due to vacations, family stress, or seasonal changes, he adjusted his medications and shortly thereafter returned to stability. The ALJ acknowledged these fluctuations in his discussion of the medical evidence (Tr. 23), but interpreted those periodic adjustments to be insignificant. Tr. 22 ("[N]o significant mood swings are documented between the alleged onset date and the [DLI]."). Mr. Olivas has not established that this finding is unreasonable, and it should therefore be affirmed, even if Mr. Olivas urges the Court to interpret the evidence differently. See Morgan v. Comm'r of Social Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999) ("Where the evidence is susceptible to more than one rational interpretation, it is the ALJ's conclusion that must be upheld.").
Furthermore, the ALJ cited evidence that Mr. Olivas had been able to work at a recycling center in 1999-2001 (before his alleged onset date) as evidence that he could sustain work even with bipolar disorder, because Mr. Olivas only left that position to pursue a higher-paying job. Tr. 23-24 (citing Tr. 40). Mr. Olivas acknowledges that he was able to work at the recycling center successfully, but argues that the fact that he was terminated from other jobs due to his bipolar disorder demonstrates that his bipolar disorder "impacted his ability to perform work and was the leading factor in his stopping work." Dkt. 16 at 3. Mr. Olivas has not shown, however, that the ALJ erred in considering his ability to work from 2000-2003, despite having bipolar disorder. An ALJ properly considers a claimant's ability to work in the past despite alleged impairments. See, e.g., Crosby v. Comm'r of Social Sec. Admin., 489 Fed.Appx. 166, 168 (9th Cir. 2012) (affirming an ALJ's adverse credibility determination based on the fact that, inter alia, the claimant's "longstanding conditions did not preclude work in the past"); Porter v. Astrue, 403 Fed.Appx. 226, 228 (9th Cir. 2010) ...