*1 credibility of assessing to protect finder could acted find Wallen Wallen’s shooting the bears was subjectively belief that per- himself from he claimed what con- sure, magistrate judge may necessary, the danger. given To be ceived Wal- issues, have been might evidence that it would credibility len’s factfinder sider posed the bears actually But unreasonable believe not believe fearful. he was danger family. or his to de- Wallen question for the factfinder mag- say the Accordingly, cide. we cannot AND REMANDED. VACATED judge’s misconception of an element istrate of the offense harmless.
IV. final issue whether Wallen jury trial on remand.
is entitled to Wal- that, if argues len even the Constitution DIEDRICH, Brenda M. trial, right jury his guarantee Plaintiff-Appellant, because, again if he is to one he is entitled judge have by judge, would tried of conviction. He con record
access to his BERRYHILL, Nancy Acting A. bias the this information would trier tends Security, Commissioner Social fact, him a fair denying trial. Defendant-Appellee. disagree. An is not accused 14-36070 No. by jury merely because a to a trial entitled of Appeals, States Court United fact, may a trier of judge, sitting as Circuit. Ninth knowledge of the record defendant’s States, Liteky v. United conviction. See Argued and June Submitted S.Ct. L.Ed.2d U.S. 2017—Portland, Oregon (“[0]pinions formed October Filed or basis of judge facts introduced occurring in the course of the cur events prior or proceedings, proceedings,
rent a basis a bias not constitute they display
partiality motion unless antagonism
deep-seated favoritism judgment impossible.”). make fair
would
V. Wallen’s conviction sen-
We vacate court for
tence and remand the district proceedings consistent with
further remand, magistrate judge On
opinion. subjec-
must decide whether Wallen held a acting faith belief “good
tive that he was his ...
protect [or] himself member of
family bodily from the harm” 1540(b)(3). §
grizzly bears. U.S.C.
OPINION GOULD, Judge: Circuit appeals the district M. Diedrich Brenda affirming court’s the Commissioner order *3 “Commissioner”) (the Security’s of Social for application of Diedrich’s Social denial (“SSDI”) Disability Insurance Security II Title of the Social Secu- benefits under rity Act. The Commissioner determined disabled, an become but that Diedrich had (“ALJ”) Judge found Administrative Law begin during disability for in she was insured which hold SSDI benefits. We calling a in erred its assessment (2) by hearing; medical advisor weight giving too little to the observations fiancé; by finding of Diedrich’s and only partially credible. Diedrich was grounds, on part reverse in these and We separately In a memoran- remand. filed reject other disposition, dum several to the challenges related Diedrich raises decision, affirming part in ALJ’s decision.
I consider claimant with troubled conditions. Bren- past serious medical and rough childhood: Her Diedrich had da Salem, for (argued), Oregon, Rae Max addiction, by drug upbringing marred Plaintiff-Appellant. fa- from her sexual and emotiоnal abuse (argued) and John C. La- David Burdett ther, attempts, marriage suicide mont, At- Special United States Assistant vio- that resulted domestic seventeen Brown, torneys; Adrian Lee Assistant has been ar- lence. Diedrich Since Morado, Attorney; David United States times, has rested at six been least Counsel, X; Region Regional Office Chief background This doubtless jailed twice. Counsel, Security of the General Social plays some role her medical conditions. Seattle, Administration, Washington; disability bene- applied Diedrich has Defendant-Appellee. appeal At fits times. issue several August application, her third filed TASHIMA, A. WALLACE Before: 2009, seeking both under SSDI benefits GOULD, B. M. and JOHNNIE RONALD Security Act and Title II of the Social RAWLINSON, Judges. Circuit (“SSI”) Security Income Supplemental of the act. under Title XVI by Judge Dissent Rawlinson benefits (Title II), 14, 2011, §§ et seq. seq. On December U.S.C. et ALJ held a XVI); (Title hearing on Diedrich’s benefits denial. The hearing relevant at the included To benefits are based needs. be SSI medical records from several of Diedrich’s eligible, “aged, must be blind or a claimant treating physicians. These records showed disabled,” must income re that, in physical addition certain condi- under certain thresholds. See id. sources tions, early July as 2003 Diedrieh suf- 1382(a). contrast, § SSDI benefits are health symptoms. fered serious mental earnings. The claimant based on must periods These symptoms included of ex- disabled,, must have contributed recklessness, hyperactivity treme vola- federal insurance trust fund de moods, weeks-long tile of depression, bouts wages. ductions his See id. *4 hallucinations, memory problems, trouble 401(b); § generally see Bowen v. Gal аttacks, concentrating, panic anxiety, social breath, 74, 892, 75, 108 S.Ct. 99 U.S. during which Diedrieh blackouts would (1988). benefits, Unlike L.Ed.2d 68 SSI experience personality changes. At various peri are limited to a certain SSDI benefits points, diagnosed Diedrich’s doctors have of length of insurance. The this insured od disorder, bipolar depression, her with at- of the amount determined disorder, post-traumatic tention deficit previously earnings. See taxed disorder, agoraphobia, split per- stress 423(c)(1). § of The U.S.C. definition sonalities, among other conditions. “disability” for SSI benefits is the same as Compare for benefits. U.S.C. SSDI hearing. Diedrieh at the testified She (Title 423(d)(1)(A) II), § id. symp- how her mental described health (Title XVI). 1382c(a)(3)(A) § hampered functioning toms in daily fiancé, Niebaum, 2010, life. David 29, Diedrich’s January Disability On Deter- explained (“DDS”) testified. He that he hаd known psychological mination Services September since the of Diedrieh end consultant concluded that the date as 26, day. saw her He how every described August Diedrich’s third application, experience manic-depres- 2009, Diedrieh bipolar would Diedrieh was due disabled cycles personali- sive and take on alternate anxiety This entitled Died- disorders. third-party ties. also submitted a Niebaum rich to benefits. But Diedrieh had SSI report, explained in which how function he been for since June insured SSDI benefits routine, inability to Diedrich’s maintain a psychological 2008. Because consul- swings, poor memory, trouble con- mood disability tant that Diedrich’s concluded centrating, anxiety, and other began ap- after June on him A dependent daily help. left her for benefits was plicаtion SSDI denied. expert hearing testified at the vocational sought Diedrieh review administrative well, but the ALJ did not call a medical as argued this denial of She SSDI benefits. advisor. psychological deter- consultant wrong onset of her disabili- denied SSDI benefits for mined date gave weight” to ty. Specifically, she claimed that dis- Diedrieh. The ALJ “little 26, 2009, observations, ability began August not on but and found Niebaum’s earlier, merely “partially much on October 2002. Diedrieh Diedrieh was credible began The ALJ disability asserted that because her witness.” concluded Died- expired disability II on rich “not ... at before her Title insurance under 30, 2008, 1, 2002, alleged June she was entitled time October SSDI date, 30, 2008, June benefits. onset binding They ALJs reflect ac- this nonetheless. filed last Diedrich date insured.” court, [Social official interpretation seeking review tion the district Security are entitled de- Administration] decision Commissioner’s final long they magistrate A to some deference as are Diedrich benefits. nied SSDI Security judge consistent with Social Act and Commission- recommended Astrue, regulations.” er’s .be The district decision affirmed. Molina 2012) (internal Findings n.5 adopted and Recom- court omitted). magistrate judge, af- citation mendations .the marks and quotation decision, and the Commissioner’s firmed part, states: In relevant SSR 83-20 timely ap- the case. dismissed Diedrich it progressive impairments, slowly With pealed. to obtain medi- impossible is sometimes establishing the precise cal evidence II impairment disabling. became jurisdiction to decide Determining proper date is onset § appeal under U.S.C. 1291. We when, difficult, example, particularly dе the district court’s review decision novo alleged onset and the date last affirming the Commissioner’s denial far past adequate are in the worked Comm’r, Stout v. Soc. Sec. Ad benefits. records are not available. *5 min., 1050, (9th 2006). 454 F.3d Cir. cases, necessary to it such will infer may set aside the Cómmissioner’s We ben the onset date legal if ALJ the committed efits denial supported error or a not reached decision evidence, hearing,
by At on [ALJ] Id. the the should call substantial of services medical when
the a advisor HI onset must be inferred. 83-20, we have held SSR that Relying A. lacking ambiguous where record is a the Diedrich contends that ALJ disability, of “the onset date ALJ legal by calling error not a committed in expert a must call medical assist hearing. argues at the She advisor
medical determining date.” Armstrong the onsеt a necessary that medical advisor was Admin., 160 F.3d of Soc.Sec. Comm’r through sift help the ALJ voluminous (9th 1998); see also DeLorme v. records and medical determine correct Sullivan, 924 disability. onset of her date (“In is event medical evidence responsible concerning ALJ is the onset study definite date not made, resolving any ing the record and conflicts medical need to be inferences SSR requires ambiguities it. Treichler v. Comm’r law 83-20 administrative of Admin., Soc. the services a medical judge upon Sec. call- of 2014). But circumstances where the all which obtain evidence advisor and determination.”); disability the date of available to must determine make Sullivan, Morgan from onset and the rele medical Cir.1991) (reversing (per.curiam) time is unavailable or vant inade pf (“SSR”) Ruling part ALJ’s. the onset quate, Seсurity Social 83- determination because 20 states the ALJ should a medi of disorders the ALJ call date mental not medical Security Rulings “Social do assistance [ cal advisor. did ] receive advisor). law,’-but they carry not the ‘force are. requirement
This
makes sense. Some-
last
date
insured.” This differs
times,
Sam,
occurs all
onset
disabilities
at
the case in
where the ALJ
once, and the
onset
clear. For
concluded that
claimant
“was not un
example,
permanently
when
claimant
‘disability’
der a
time
wreck,
injured
rarely
car
there is
Id. the date
[the
ALJ’s] decision.”
(internal
dispute
omitted).
over
quotation
the date of-the crash. But
control,
slowly
Sam
sometimes conditions
over
build
conclude
not
here.
does
cases,
helps
time. In such
it
to have medi-
Finally, the district court held that the
expertise
cal
symp-
when the
determine
call,
ALJ did not
need
advisor
toms
enough
severe
so
became
.psychological
because
consultants exam-
claimant
disabled under Title II.
became
ined Diedrich’s medical
in reach-
records
Morgan,
rious. ted)). advisor, relationship close ALJ Niebaum’s with at least the could exercise germane not a reason to Diedrich is dis- on medical sci- judgment informed based weight count the of his observations. ence. Second, support a lack of from the B “overall evidence” is not con next address Diedrich’s We proper disregarding for Niebaum’s bаsis by giving Astrue, erred “little tention that the ALJ Bruce v. observations. See “Lay 2009) (“Nor weight” to Niebaum’s observations. un testimony symptoms a claimant’s our discredit der law could [the that an take competent supported evidence ALJ must lay testimony as witness’s] record.”). account, expressly into unless he she by medical disregard testimony such lay testimony third-party fact determines germane reports per each witness function offer different gives reasons Apfel, spective records alone doing pre for so.” Lewis than medical 2001). cisely why The ALJ evidence is valuable at a three such listed Smolen, hearing. giving observations Niebaum’s (1) (holding ALJ erred where the ALJ Niebaum a close weight”: “little had Diedrich, family of claimant’s “likely rejected the relationship which members be about opinion;” “ovеrall influenced his cause medical records did corrobo not support Nieb- medical evidence” A lack of symptoms). support rate those observations; and ob Niebaum’s aum’s germane is not a medical records begin September until servations did to give weight” to ob reason “little those 2008, three month after Diedrich’s insur servations. expired. con benefits ance SSDI of these reasons is not clude that each Third, although Niebaum’s obser germane disregard Nieb- as a reason after began vations three months Died- aum’s observations. ended, his rich’s insured observa First, relationship personal tions are to show Niebaum’s still relevant symptoms during period. not a with Diedrich is valid reason Absent To experienced “con- reason to think Diedrich discount his observations. do so that, major change regardless symptom our insistence three tradicts *7 Niebaum, they parties, are months before she met it whether interested family position members in a fair and reasonable inference that friends symptoms to symptoms observe claimant’s and dai- observed were sub Niebaum ly competent stantially to to testify symptoms are as to similar Died- activities 30, his experienced or condition.” rich June her Valentine Comm’r before 2008. See Admin., Colvin, (9th Soc. Sec. 694 Tobeler v. 833 F.3d 2014) 2009) (internal quotation (“[Lay marks omit- Cir. statement that witness’s] ted); Chater, incapable of working see also Smolen v. [claimant] was (“The 1996) ability fact that a 2001 is to his to work relevant lay family any is a member at witness cannot be a least in the absence evi ground rejecting testimony. his dence condition worsened [сlaimant’s] 2001.”); contrary, testimony To lay between 1999 and Lester v. wit- cf. Chater, every day nesses see the claimant who (“[M]edical value; particular lay after ex- such witnesses will evaluations made piration of claimant’s insured status are Diedrich’s personalities different and there no preexpira- report relevant to an evaluation mentioning multiple person- (internal quotation tion condition.” insured; alities before Diedrich’s date last omitted)), 9,1996). amended (Apr. That daily viewed Diedrich’s began involving Niebaum’s observations life as range three wide of activities. months after insured Based on our review the record case, germane ended is not a give reason conclude that none of these rea- weight.” those observations “little sons is “clear Id. convincing.” that none of Regarding conclude the ALJ’s Dr. report, Robinson’s three for discounting reasons Niebaum’s ALJ said that Dr. Robinson “did not make germane. observations is We hold that the observations about being the claimant anxious, by giving flighty, ALJ weight” depressed, manic, erred “little suggest Niebaum’s which observations. would that [ ] the claimant’s mental health were not as se- C vere as she hearing.” testified if But even Diedrich were suffering from Finally, we address Diedrich’s con symptoms, such we would not necessarily finding tention that the ALJ erred in expect Dr. Robinson to note them in her “partially she was a witness.” credible Dr. report. Robinson orthopedist, was an assessing credibility of a claim- mental professional.. health She testimony regarding subjective ant’s might thought beyond capacity it pain intensity symptoms, or the inquire or comment about mental health engages two-step ALJ in a analysis. symptoms. In line with her Dr. specialty, First, the ALJ must determine whether reported Robinson pain that Diedrich objective there is medical evidence back, shoulder, feeling said she was in her underlying impairment which rea- could neck, hand, Still, and wrist. under the produce sonably expected pain heading Complaints,” “Chief Dr. Robinson symptoms alleged. or other If the claim- “Multiple psychiatric noted history; bipo- evidence, presented ant such has disorder, ADHD, lar personali- borderline there no of malingering, then disorder, disorder, ty panic agoraphobia.” give specific, the ALJ must clear and It is unsurprising that Robinson Dr. convincing reject reasons in order specific also mention Diedrich’s mental testimony severity about the so, symptoms. health Thаt she did symptoms. of the view, says in our little about the extent Molina, (internal quota- which Diedrich in fact have suf- been omitted). tion marks and citations fering from symptoms. such gave finding four Died- Moreover, severity rich’s about the of her the same month that Diedrich Robinson, symptoms only “partially psycholo- credible”: Dr. saw Dr. she saw Robinson, *8 orthopedist Terri gist, who treat- Dr. Nick Dr. Dietlein con- Dietlein. Diedrich, ed not mention presented “symptoms did mental cluded that Diedrich symptoms February Depressive health in her Major 2008 consistent with a Disor- Buttars, report; therapist Melissa very possible der and PTSD. that It she Diedrich, par- who treated not has did mention Attention Disorder.” Dr. Diet- Deficit ticular symptoms mental health in her lein’s that the ab- conclusions reinforce May report; symptoms the ALJ’s view sence of mental from Dr. health record, report prove, there were no observations of not Robinson’s does tend testimony by ALJ to discount Diedrich’s prove that Diedrich persuasively, let alone “cherry picking]” the absence of certain symptoms. re- such Dr. Robinson’s lacked report. Attmore v. provide symptoms from this not a clear and convinc- port does Colvin, discounting testi- ing reason Diedrich’s Astrue, (quoting Scott v. 647 F.3d
mony. 2011)). report not Buttars’s does therapist Regarding Buttars’s convincing provide clear reason and assessment, the ALJ noted that May regarding the extent find Diedrich’s claims “no hallucina Buttars found indication symptoms of her unreliable. obsessions, tions, delusions, or phobias, Next, ALJ’s com we address disturbances”; that Diedrich perceptual nobody Diedrich’s dif ments observed “good”; mood to as her Buttars described report personalities that no ferent and that Buttars found Diedrich’s social multiple personalities mentioned before functioning, judgment, intellectual disagree Diedrich’s last insured. We However, the fact that memory all normal. supports ALJ with the that the record exhibiting symp not certain Diedrich hearing, Niebaum characterization. At. appointment on a at the time of toms detail, his observations testified about not that Died- particular day does indicate symptoms. He split personality Diedrich’s symptoms those experiencing not rich was mentioned his also those pertinent As other times. generally or at And, though third-party report. function explained: has Circuit Ninth began three Niebaum’s observations issues, health it is [Regarding] mental insured, months after date last Diedrich’s reject a claimant’s error they degree support to a the notion still symptoms wax and wane merely because split personality symptoms that Diedrich’s Cycles treatment. in the course of during peripd as she were insured debilitating symptoms improvement Tobeler, them. described occurrence, and in such are common addition, a re counseling 833. In progress error for an circumstances it port May that Died- 2007 mentioned of im- instances pick out a’few isolated history rich had of “blackouts” that were period of months provement over triggered by arguments events them as a basis years treat feelings.” It noted “evoked intense capable concluding a claimant diagnosed previous therapist that a had. -obviously ALJs ^working .... While split personality Diedrich disorder. they examples to why show rely must of the record The ALJ’s characterization credi- claimant is not believe scrutiny. conclude survive ble, they choose points data must to'Died- that the ALJ’s assertions related examples of broader constitute fact split personality disorder rich’s are satisfy applicable development convincing clear and find Died- convincing” standard. “clear only partially rich credible. Here, Garrison, 1017-18. ar Finally, symptoms from But- of .certain address absence daily gument “activities of to show a Diedrich’s report is insufficient tars’s .that ALJ took note living that Diedrich are development” wide.” “broader daily Diedrich could symptoms. Id. at certain activities experience those Indeed, cooking, taking bathing, such report perform, 1018. Buttars’s noted house, cat, chores mental were in care around health disorders bills, using a check- paying improper shopping, for the partial It remission. was *9 ignored ing-meals book. But the ALJ other evidence and washing.dishes). noteWe showing the difficulties Diedrich faced that though even Diedrich performing Heckler, everyday life. See Gallant tasks, these likely doing she was them 1984) (ALJ may F.2d with consistency persistence and justify credibility finding “by ignor- requires. work environment See Fair v. ing competent in the evidence record Bowen, 885 F.2d suggests result”). opposite This evi- (“[M]any home activities not easily are dence to going days included five three to may transferable what be the more sleeping; weeks-long without bouts of de- grueling environment of the workplace, pression; overspending promiscuous- and it might where impossible periodical be to during hallucinations; manic periods; ness medication.”). ly rest take Diedrich’s attention; difficulty paying inability to fol- anxiety also included related to activities; through on difficulty low re- interactions, social making easy task attacks; membering things; panic severe perform potentially very inside the home about, anxiety to, aversion and social situa- ' .perform difficult to outside the home. tions; personali- blackouts and alternate ability perform Diedrich’s daily certain ties; medicine; needing reminders to take is not convincing a clear activities and forgetting appointments; getting side- than fully reason find less credible. house; when tracked frustra- outside tion reading; and when confusion trouble conclude that none of the ALJ’s We follоwing remembering instructions; and given finding reasons for only Diedrich changes routine; trouble with trouble convincing. credible is and partially clear stress; handling difficulty” “extreme hold that the ALJ in its We erred credibili- staying That focused a task. Diedrich finding ty Diedrich. related participate daily could some activities not contradict does of other- problems
wise that she severe encountered IV daily during life period. her' the relevant summary, we hold that ÁLJ daily The sorts of activities Diedrich (1) by calling a medical advisor erred perform readily could are also not “trans- help precise determine the onset to a ferrable work environment.” Ghanim disability; by giying “little Colvin, observations; weight” to Niebaum’s 2014) (internal quotation omitted); finding only “partially Diedrich Smolen, (“The see also 1284 n.7 conclude none credible.” Security Act not require Social Molina, errors is harmless. these utterly incapacitated be claimants to be listed, grounds 1115. On benefits, eligible for many home activi in part court’s reverse the district decision. easily ties not be transferable separately disposi- In a filed memorandum ”). chores, work environment .... House tion, part we otherwise affirm in the dis- simple meals, cooking self-grooming, pay court’s for fur- trict decision. We remand bills, checks, ing writing caring for proceedings that the with instructions home, cat in ther one’s own as well as occasion vacated, ALJ’s decision home, shopping outside simi al are not court district shall to the ALJ with remand See, typical lar to responsibilities. work it Gallant, instruction that should call a medical e.g., (ordering at 1453 proceed a mаnner leg pain of benefits for advisor otherwise award and back despite daily opinion. activities cook consistent our *10 ing support find- costs the evidence offered
The Commissioner shall bear all majority ing disability. The seeks appeal. selectively ambiguity by manufacture part, AFFIRMED REVERSED of the referring portions record. part, REMANDED. But the fact Majority Opinion, p. 639. dispute the not RAWLINSON, parties remains that Judge, Circuit by alleged onset Diedrich and date dissenting: absolutely is accepted by the There ALJ. col- my from respectfully I dissent regarding no in this record ambiguity that Administra- leagues’ conclusions asserted onset date. (ALJ) in its Judge Law “erred assess- tive (1) calling a by not medical advisor ment that no importantly, we have ruled More hearing; by giving weight too little if required medical advisor is [Plaintiff-Appellant to the observations of was never claimant determines fiancé; by Brenda Astrue, MJ disabled. See Sam only finding partially Diedrich was 2008). ruling per- This makes Majority Opinion, p. 636. credible.” if because there was never fect sense disability, longer onset no has date unquestioned unquestionable It prece- concluding relevance. significant suffered that the claimant majority inexpli- apply, dent does is impairments. and mental The physical findings cably ignores explicit at least four proceedings in the was whether sue raised non-disability by the ALJ. made impairments rendered the claimant those Security under the Social Act. disabled decision, 1 of her the ALJ page On they ruled that did not. Our task The ALJ stated: is to examine whether the ALJ’s determi of all the evi- After careful consideration supported nation is substantial evi dence, undersigned conсludes the dence, disagree not whether we with the disability with- claimant was under determination. See Attmore Col meaning Security in the the Social 2016). vin, ...Act decision, 12 of the the ALJ page On A 1. Failure To Call Medical Advisor determined: majority concludes is there- finding A of “not disabled” legal by failing error to call a committed the framework of appropriate fore under determining to assist in medical advisor the above cited rule. disability Majority onset date. See acknowl- Opinion, p. majority 639. The consistently edges that we have ruled under a disabil- The claimant was not if required only there
a medical advisor Security ity, defined in the Social ambiguity the record and the onset Act, from October time id., 638; p. see must be inferred. See date, alleged onset June Comm’r, Armstrong v. 30, 2008, insured the date last 1998). Howеver, majority page 13 of the In her conclusion ambiguity in the opinion points to no real decision, the ALJ reiterated: regarding the onset date of the record Indeed, ALJ, application on the disability. Based insurance bene- disability disability objection, accepted alleged on- without ..., 1, 2002, fits the claimant was disabled evaluat- set date of when October *11 216(i) 223(d) may given weight. under sections and of the also be less See Molina Security Astrue, (9th Act ... Social 1114 Cir. 2012) (“[BJeeause provided the ALJ clear repeated findings In view the convincing rejecting and reasons for disability, gain- of no it credibly cannot subjective complaints, claimant’s own the claimant said that the ALJ found was lay because the testimony witness’s was finding That placed disabled. case complaints, similar to such it follows that in that no holding within our Sam gave germane ALJ for reasons required. legal advisor No error oc- rejecting lay testimony.”) witness’s (“Be- Sam, curred. 550 at F.3d 810 Comm’r, (quoting Valentine the ALJ cause found Sam was (9th 2009) (internal 694 Cir. quotation any disabled at time the date of omitted)). decision, question of when he be- proce- came disabled not arise and the did below, As gave discussed the ALJ “clear in prescribed dures 83-20 did not SSR convincing” only reasons for partially (citation omitted) (emphases in apply.”) crediting the testimony. claimant’s Garri Sam). Sam, In we clarified that “SSR 83- Colvin, son v. F.3d 1014-15 in 20 addresses the situation which an 2014) standard). result, (setting As a judge finding administrative law makes a testimony of claimant’s fiancé fares no that an as of an individual disabled Molina, better. See at 1114. F.3d application as question date and the arises disparity whether the arose an earlier Partially Crediting 3. Claimant’s Tes- (citation omitted). time.” Id. timony distinguished our earlier decisions provided The ALJ following Sullivan, Armstrong Morgan v. only partially crediting the claimant’s 1991), applying F.2d 1079 testimony: explicit when “there was either an ALJ finding or substantial evidence (1) Although the claimant testified point claimant was disabled at some mania, she depres- suffered “severe after insured, raising ques- sion, date last thus anxiety, agoraphobia,” the “or- Sam, tion onset date.” at 811 thopedic consultative examiner added). contrast, In (emphasis any not make observations about Sam, us, like the ALJ the case before anxious, being flighty, claimant depressed, “found that [the claimant] was disabled addition, manic.” mental health light finding, time.” Id. In support treatment notes conclusion thаt required by “the ALJ was not 83-20 SSR capable functioning.” the claimant was expert pro- to introduce a medical into the A mental health examination “no reflected cess.” Id. hallucinations, delusions, indications] obsessions, phobias, perceptual distur- Giving Weight
2. Too To Little Indeed, the claimant herself bances.” “de- Testimony Claimant’s Fiancé Of ‘good’ scribed her mood as social her This by reviewing judgment, issue be resolved functioning, intellectual memory claimant’s because we have Despite were all normal.” provides ger- testimony regarding multiple ruled where claimant’s giving weight disorder,” personalities mane reasons less and disassociative witness, subjective testimony reported from one no there were observations of testimony by multiple personalities similar different witness the record. ion, merely represented in a engaged p. The claimant wide were ob range daily living summary activities that than her condition rather disability. inconsistent with her asserted of the See Tommaset physician. servations cat, The claimant alone with lived Astrue, ti v. herself, herself, enjoyed bathed
dressed “reject (permitting an ALJ to cat, cat’s cooking, cleaned the litter fed treating physician’s if it opinion is based to *12 dishes, box, home, vac- cleaned her washed large extent a self-re claimant’s bathrooms. She uumed and cleaned her (citation ports”) quotation internal walked traveled sometimes and sometimes omitted). by car to various destinations. She majority to the claim- The also refers clothes, groceries shopped for and was to psychologist, ant’s visit Dr. Dietlein. bills, change, to pay able count and use Majority Opinion, p. 641. Neverthe- managed savings checkbook. She also less, opin- the line of Dr. Dietlein’s account. bottom support ion not of does a claim mental consistently held that similar Summary disability. In Dr. .Dietlein’s findings to substantial constituted evidence Findings, “Today’s he concluded: evalua- partial support credibility determination tion Ms. able to revealed Diedrich See, Apfel, an ALJ. v. e.g., Lewis by made is, instructions, understand and remember (“One (9th 2001) Cir. to at- able sustain her concentration lay an for which ALJ discount reason tention and is persist. able She was able testimony is it conflicts with medical evidence.”) engage in (citation omitted); social see interactions successful- id. also (“The I ly. adequate- believе she any would be able at 612 absence of mention of any along ly manage might given fatigue, with the ‘no side effects’ funds that re medical her.” [claimant’s] observations rejection of ...
ports, supported ALJ’s the Addressing the lack mental health testimony that had suffered [claimant] Buttar, symptoms by therapist observed ”). chronic fatigue majority following equivoca- the offers the majority partial The takes issue with tion: ALJ, finding credibility specifically of the fact that not exhibit- [T]he Diedrich was challenging of the the bona fides ing certain at symptoms the time by articulated support her appointment day finding. particular expe- indicate Diedrich was addressing In on the reliance those, riencing generally any being lack reference the claimant pertinent other times. “anxious, manic,” flighty, dеpressed Dr, majority Robinson’s ob report, Majority Opinion, p. 642. Dr. orthope serves that Robinson was an majority therapist The isolates' But- profes than a dist rather mental health argue tar’s observations absence of However, Opinion, p. 641. Majority sional. development” a “broader of mental health physician orthopedic acceptable is an Colvin, (quoting issues. Id. Garrison upon medical source whose observations 2014)). 1017-18 F.3d The 20 C.F.R. properly relied. See 416.902(a) argument in- the .is majority’s § flaw (defining “acceptable medical source”). by observations listing complaints Buttar’s were buttressed refer Majority Opin see Robinson majority, enced the similar observations of Drs. Dietlin, reflecting a “broader develop- claimant’s to support fiancé diagnosis of disabling ment” the absence mental of “split personality” problematic for two Garrison, disability. 1) reasons: 1017. the observations were made 2) after the last insured the ob majority’s fundamentally, More reli- servations were consistent with the singularly misplaced on Garrison is ance evidence Dale record. See because the facts Garrison are almost Colvin, 2016) opposite of polar in this rec- facts (describing after-the-fact observations of Garrison, “diagnoses In of [post- ord. impairments “marginally bipolar traumatic stress dis- disorder] relevant,” especially where order remained across constant all treat- opinion doctors); differed from the of the case, contrast, ment records.” Id. Comm’r, see also Batson v. disabling absence of observed (approving ALJ'dis- imрairment mental “remained constant *13 crediting of testimony that was claimant’s (empha- across all treatment Id. records.” evidence); inconsistent with medical added). sis Barnhart, Bayliss 1211, 427 v. F.3d 1218 best, At the majority’s is an view alter ALJ, (9th 2005) Cir. (approving discredit interpretation pre native of the evidence ing family testimony that member was However, hearing. sented at we have evidence); with medical inconsistent repeatedly per held that there are if two Heckler, Vincent Vincent behalf of v. evidence, of the missible views the view (9th 1984) (same). 739 F.2d Cir. 1395 taken must stand. Burch sum,- In discounting of the .ALJ’s fian Barnhart, (“Where 400 v. F.3d 679 supported by ce’s substan susceptible evidence is to more than one tial evidence. interpretation, rational it is con the ALJ’s (citation ,..”) regularly’ We have defined substantial be upheld; clusion that must omitted) added); a as “more than scintilla (emphasis see evidence [but] also Garri Holohan, son, (“Where than a preponderance.” less 246 F.3d 1010 the evi 1201, quoting Apfel, F.3d at Tackett v. support can reasonably dence af either (9th 1999). decision, Cir. have firming or We reversing may substantial, , emphasized that judgment our for that substitute of the (citation ALJ,...”) “very ... standard deferential even omit and alteration ted); more so than Massanari, ‘clearly erroneous’ Holohan v. stan- 246 F.3d Admin., 2001) 1195, 1201 (same).. dard.” Brault Social Sec. Cir. (2nd 2012) (citation majority also takes issue with the omitted). We have clarified sub- “[t]he discounting of “split personality” means once stantial evidence standard Majority disorder Opinion, p. evidence. facts, reject ALJ finds can facts those we. matter, 642. As an initial reference only if а reasonable factfinder have would previous diagnosis of split personality was Id., (citations to conclude othenvise.” entirely on claimant’s own re based omitted) quotation (empha- internal porting, may be discounted sis the original). Ryan Sec., basis. See Soc. Comm’r of 528 F.3d Unfortunately, majority 1206-07 failed ad- (holding that “an ALJ. throughout here to discount this standard the ma- opinion on subjective jority that relies opinion, but most especially when reviewing statements rather clinical findings”). than the ALJ’s determination addition, In daily reliance on the the activities incon- observations were interpreta- impair- ble to more than one rational level asserted
sistent tion. ment. (alteration omitted). Id. that the claimant
The ALJ noted lived cat, cat, cared alone with her applying defеrential substan- After herself, enjoyed cook- and dressed bathed review, I agree tial evidence standard shopped her home. She ing, and cleaned magistrate judge and the district with the bills, clothing, paid groceries free court that the decision the ALJ was checkbook, change, used counted legal supported by substantial error savings account. managed a view, my majority evidence. reaches by reweighing result the evi- a different recognized and affirmed find- dence, something permitted we are “daily ings of an ALJ that similar activities (“[I]t Brault, 683 F.3d do. See [her] are inconsistent with claimant] [of function to novo our determine de whether disability.” Carmickle v. allegations ”) (citation disabled. [claimant] Comm’r, 1155, 1163 omitted). alteration 2008). respectfully I dissent. upheld we have similar precisely, More findings involving facts credibility in cases
virtually those in this case. See identical
Batson, (upholding at 1196 *14 where the
partial credibility determination animals, walk[ed] his “tend[ed]
claimant coffee,
outdoors, and vis- out [went] Morgan v. neighbors”); see also it[ed] with REVELS, Kanika Shavon Comm’r, 169 Plaintiff-Appellant, “provided specific (affirming that that undermine and substantial credibility,” including the [claimant’s] Nancy BERRYHILL, Acting A. meals, laundry, fix “ability Security, Commissioner Social yard, occasionally care
work Defendant-Appellee. child”). his friend’s No. 15-16477 680-81, Burch, In claimant was “able care Appeals, noted United States Court needs, cook, clean personal for her own Ninth Circuit. shop. neph- interacted] She Argued May 2017— and Submitted boyfriend. She able [was] ew and Francisco, San California
manage finances and those of her her own Filed October partial nephew.” upholding the ALJ’s testimony, rejection of the claimant’s
emphasized:
Although [the claimant’s] the evidence
daily may also admit of an activities
interpretation more favorable [the
claimant], interpretation the ALJ’s
rational, uphold we must the ALJ’s suscepti- where the evidence
decision