Steven Ahearn v. Andrew Saul

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEVEN T. AHEARN, No. 19-35774

Plaintiff-Appellant,

D.C. No.

v. 3:18-cv-05699-MLP

ANDREW M. SAUL,

Commissioner of Social OPINION

Security,

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of Washington

Michelle L. Peterson, Magistrate Judge, Presiding

Submitted October 6, 2020*

Seattle, Washington

Filed February 17, 2021

Before: Susan P. Graber and William A. Fletcher, Circuit

Judges, and Nancy D. Freudenthal,** District Judge.

Opinion by Judge W. Fletcher

*

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

**

The Honorable Nancy D. Freudenthal, United States District Judge

for the District of Wyoming, sitting by designation.

2 AHEARN V. SAUL

SUMMARY***

Social Security

The panel affirmed the district court’s judgment affirming

the administrative law judge’s denial of claimant’s

application for Supplemental Security Income (“SSI”) under

the Social Security Act.

The panel rejected the government’s description of the

standard of review for Social Security cases. Citing I.N.S. v.

Elias-Zacarias, 502 U.S. 478 (1992), an immigration case,

the government asserted that a reviewing court could set aside

an ALJ’s conclusion in an SSI case only if the record

compelled a contrary conclusion. The panel held that Elias-

Zacarias did not describe the standard of review in an SSI

case.

The panel held that in an SSI case, the court reviews the

decision of the ALJ for substantial evidence. If substantial

evidence in the record supports the ALJ’s decision, the court

must defer to the ALJ. In the absence of substantial evidence,

however, the court must set aside the ALJ’s decision. The

court is not restricted to setting aside the ALJ’s decision only

when the evidence in the record compelled a contrary

conclusion.

Considering the record as a whole, the panel held that the

ALJ’s disability determination was supported by substantial

evidence.

***

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

AHEARN V. SAUL 3

COUNSEL

Eitan Kassel Yanich, Law Office of Eitan Kassel Yanich

PLLC, Olympia, Washington, for Plaintiff-Appellant.

Matthew W. Pile, Acting Regional Chief Counsel, Seattle

Region X; Katherine Watson, Assistant Regional Counsel;

Kerry Jane Keefe, Assistant United States Attorney; Social

Security Administration, Office of the General Counsel,

Seattle, Washington; for Defendant-Appellee.

OPINION

W. FLETCHER, Circuit Judge:

Claimant Steven Ahearn seeks disability benefits under

the federal Supplemental Security Income (“SSI”) program.

The Administrative Law Judge (“ALJ”) denied benefits, and

the district court affirmed. We affirm in turn.

There is nothing unusual about the substance of this

appeal that merits a published opinion. We are publishing

our decision to draw attention to the government’s incorrect

description, in its briefs in this and in other recent SSI cases,

of the standard of review.

I. Standard of Review

Citing I.N.S. v. Elias-Zacarias, 502 U.S. 478 (1992), an

immigration case, the government insists that a reviewing

court can set aside an ALJ’s conclusion in an SSI case only

if the record compels a contrary conclusion. In Elias-

Zacarias, the Supreme Court wrote that a court of appeals can

4 AHEARN V. SAUL

reverse a decision of the Board of Immigration Appeals only

if the evidence in the record “not only supports that

conclusion, but compels it.” Id. at 481 n.1 (emphasis in

original). This passage from Elias-Zacarias does not

describe the standard of review in an SSI case.

Congress adopted that standard of review for immigration

cases in 1996. Illegal Immigration Reform and Immigrant

Responsibility Act of 1996, Pub. L. No. 104-208, sec. 306,

§ 242(b)(4)(B), 110 Stat. 3009-546, 3009-608. Since then,

8 U.S.C. § 1252(b)(4)(B) has provided that the administrative

agency’s findings in an immigration case “are conclusive

unless any reasonable adjudicator would be compelled to

conclude to the contrary.” For social security cases, Congress

adopted a different standard: “[t]he findings of the

Commissioner of Social Security as to any fact, if supported

by substantial evidence, shall be conclusive . . . .” 42 U.S.C.

§ 405(g). “[T]he use of different language by Congress

creates a presumption that it intended the terms to have

different meanings.” Legacy Emanuel Hosp. & Health Ctr.

v. Shalala, 97 F.3d 1261, 1265 (9th Cir. 1996).

In an SSI case, we review the decision of the ALJ for

substantial evidence. If substantial evidence in the record

supports the ALJ’s decision, we must defer to the ALJ. In the

absence of substantial evidence, however, we must set aside

the ALJ’s decision. We are not restricted to setting aside the

ALJ’s decision only when the evidence in the record compels

a contrary conclusion.

In a recent SSI case, the Supreme Court described the

substantial evidence standard that applies in this context:

AHEARN V. SAUL 5

The phrase “substantial evidence” is a

“term of art” used throughout administrative

law to describe how courts are to review

agency factfinding. Under the substantial-

evidence standard, a court looks to an existing

administrative record and asks whether it

contains “sufficien[t] evidence” to support the

agency’s factual determinations. And

whatever the meaning of “substantial” in other

contexts, the threshold for such evidentiary

sufficiency is not high. Substantial evidence,

this Court has said, is “more than a mere

scintilla.” It means—and means only—“such

relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.”

Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (alteration

in original) (citations omitted).

“[We] reverse only if the ALJ’s decision was not

supported by substantial evidence in the record as a whole or

if the ALJ applied the wrong legal standard. Substantial

evidence means such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion. The

evidence must be more than a mere scintilla but may be less

than a preponderance.” Molina v. Astrue, 674 F.3d 1104,

1110–11 (9th Cir. 2012) (quotation marks and citations

omitted), superseded by regulation on other grounds. To

determine whether substantial evidence supports the ALJ’s

determination, we must assess the entire record, weighing the

evidence both supporting and detracting from the agency’s

conclusion. Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir.

2001). We may not reweigh the evidence or substitute our

judgment for that of the ALJ. “The ALJ is responsible for

6 AHEARN V. SAUL

determining credibility, resolving conflicts in medical

testimony, and for resolving ambiguities.” Andrews v.

Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). “When the

evidence can rationally be interpreted in more than one way,

the court must uphold the [ALJ’s] decision.” Mayes,

276 F.3d at 459.

We review the decision of the district court de novo.

Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th

Cir. 2002). We must “independently determine whether the

Commissioner’s decision (1) is free of legal error and (2) is

supported by substantial evidence.” Smolen v. Chater,

80 F.3d 1273, 1279 (9th Cir. 1996).

II. Discussion

Ahearn applied for SSI in March 2013, alleging disability

since October 1, 2010, when he was twenty-eight years old.

The ALJ found that Ahearn was not disabled, and the

decision became administratively final on December 16,

2014. Two months later, Ahearn filed a second application

for SSI, again alleging disability since October 1, 2010.

In support of his second application, Ahearn submitted

evidence of changed circumstances. The ALJ wrote that the

evidence in the record, including the new evidence, did not

rebut a res judicata-based presumption of non-disability. The

ALJ then evaluated the evidence using the five-step process

required in SSI cases. After step three, the ALJ determined

Ahearn’s residual functional capacity. Relying on that

functional capacity, she found at step four that Ahearn could

perform his past relevant work of janitor and home care

attendant. She found at step five that Ahearn could also

AHEARN V. SAUL 7

perform other work in the national economy. The ALJ

concluded that Ahearn was not disabled and denied benefits.

The district court affirmed after concluding (1) that the

ALJ reasonably evaluated Ahearn’s testimony and the

medical evidence, and (2) that any error in the ALJ’s

presumption based on res judicata was harmless. Ahearn

appealed.

A. Ahearn’s Testimony and the Medical Evidence

1. Testimony

An ALJ engages in a two-step analysis to determine

whether to credit a claimant’s testimony regarding pain or

symptoms. The ALJ first determines whether the claimant

has presented objective medical evidence of an underlying

impairment that could reasonably be expected to produce the

pain or other symptoms alleged. Garrison v. Colvin,

759 F.3d 995, 1014 (9th Cir. 2014). If the claimant satisfies

the first step of this analysis, and there is no evidence of

malingering, “the ALJ can reject the claimant’s testimony

about the severity of her symptoms only by offering specific,

clear, and convincing reasons for doing so.” Smolen, 80 F.3d

at 1281. An ALJ is not required to “believe every allegation

of disabling pain.” Fair v. Bowen, 885 F.2d 597, 603 (9th

Cir. 1989). However, to discredit a claimant’s testimony

when a medical impairment has been established, the ALJ

must provide “specific, cogent reasons for the disbelief.”

Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995) (quotation

marks and citation omitted).

Ahearn testified that his depression, cognitive

impairments, and other issues resulted in severe limitations

8 AHEARN V. SAUL

on his ability to work, including an inability to concentrate

for a sustained period and to work fast enough to satisfy his

employers. The ALJ concluded that Ahearn’s limitations

were not as severe as he claimed. She discounted Ahearn’s

testimony because, in her view, it was inconsistent with

Ahern’s medical record, his work history, and his daily

activities.

Substantial evidence supports the ALJ’s conclusion that

the medical record was inconsistent with the severity of the

limitations Ahearn described in his testimony. The ALJ cited

information in Ahearn’s medical record that provided

specific, clear, and convincing reasons supporting a finding

that Ahearn’s limitations were not as severe as he claimed.

The ALJ did not simply pick out a few isolated examples to

show that his testimony was inconsistent with the record.

Further, Ahearn’s work history provides substantial

evidence to support the ALJ’s decision. Ahearn testified that

for much of his life he had issues with cognition, endurance,

speed, depression, breathing, and sleeping. Yet the record

shows that Ahearn was gainfully employed during his

twenties. For example, he worked as a janitor and then as a

home care attendant at Western State Hospital for nine

months in 2002, and his employment was terminated due to

funding issues rather than due to poor performance.

Finally, Ahearn’s daily activities provide substantial

evidence to support the ALJ’s decision. Ahearn had the

ability to play video games and watch television for sustained

periods, to use a library computer a few times a week for two

hours at a time (the maximum time permitted by the library),

to use public transportation, to shop at stores, to perform

AHEARN V. SAUL 9

personal care, to prepare meals, to socialize with friends, and

to perform household chores.

2. Medical Evidence

Ahearn objects that the ALJ erred in discounting the

assessments of three examining psychologists, Drs. Bates,

Ruddell, and Wingate.

Dr. Bates examined Ahearn in March 2007. His report

was in the record when the first ALJ denied benefits. At the

time of Dr. Bates’s report, both of Ahearn’s parents were

alive but divorced. Ahearn had lived with his father since he

was nine years old because of his mother’s mental health

issues. Dr. Bates diagnosed depression and borderline

intellectual functioning. Among other things, Dr. Bates

concluded that Ahearn “will have difficulty successfully

performing activities and maintaining consistent attendance

without considerable supervision.” The ALJ gave Dr. Bates’s

assessment “minimal weight” because it was “remote” in

time, but did adopt his finding of “borderline intellectual

functioning” and “mild depressive disorder.”

Dr. Ruddell examined Ahearn in March 2015. At the

time of Dr. Ruddell’s examination, Ahearn’s father had died

six years earlier, and his mother had died within the past

month. Ahearn expected to be homeless if he could not stay

with friends. Ahearn reported to Dr. Ruddell that he had

“worked general labor” from 2001 to 2012, and had “no

problems” with co-workers or supervisors. Dr. Ruddell noted

that Ahearn was taking medication for depression and

diagnosed “major depressive disorder” and “intellectual

disorder.” On the form, Dr. Ruddell checked no boxes for

“severe” limitation, but checked several boxes for “marked”

10 AHEARN V. SAUL

limitation, including limitations in understanding,

remembering, and persisting in tasks by following either

simple or detailed instructions; learning new tasks; and

adapting to changes in a routine work setting. The ALJ gave

some weight to the findings of Dr. Ruddell, but gave no

weight to the checked limitations “because they are entirely

inconsistent with the claimant’s ability to work given his

cognitive disorder and borderline intellectual functioning.”

The ALJ noted that at an appointment three months later,

Ahearn was assessed as “doing ‘remarkably well’ since the

death of his mother.” That later appointment, the ALJ noted,

had not been for the “purpose of obtaining benefits.”

Dr. Wingate examined Ahearn in January 2017. At the

time of Dr. Wingate’s report, Ahearn was homeless,

alternating between a shelter and a tent in the woods. Dr.

Wingate noted that Ahearn was taking medication for

depression but that he “often” forgot to take it. Dr. Wingate

diagnosed “major depressive disorder,” “unspecified anxiety

disorder,” and “unspecified cognitive disorder.” On the form,

Dr. Wingate checked several boxes for “marked” limitations,

including understanding, remembering and persisting in tasks

by following detailed instructions; performing activities

within a schedule; learning new tasks; and completing a

normal work day. Although she checked no individual box

for “severe” limitation, Dr. Wingate did so for the “overall

severity based on the combined impact” of the diagnosed

mental impairments. The ALJ gave “very little weight” to

Dr. Wingate’s assessment “because it was primarily based on

past instances of exhibiting secondary gain,” and because it

was inconsistent with the assessments of treatment providers

who “repeatedly” noted that Ahearn was “negative for

symptoms of depression.”

AHEARN V. SAUL 11

The ALJ did not err in giving limited weight to Dr.

Bates’s assessment. “Medical opinions that predate the

alleged onset of disability are of limited relevance.”

Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1165

(9th Cir. 2008).

Nor the did ALJ err in giving limited weight, and in some

instances no weight, to the assessments of Drs. Ruddell and

Wingate. The ALJ instead adopted the assessments of

psychologists Drs. Kraft and Donahue, two non-examining

state-agency consultants. After reviewing the medical

evidence in the record up to 2015, including the assessments

of Drs. Bates and Ruddell, Drs. Kraft and Donahue concluded

that Ahearn could perform a range of simple, repetitive tasks

consistent with the ALJ’s determination of Ahearn’s residual

functional capacity. The ALJ did not err because, as she

specifically noted, the assessments of Drs. Kraft and Donahue

were “supported by other evidence in the record and [were]

consistent with it.” Andrews, 53 F.3d at 1041.

B. Res Judicata

An ALJ’s determination that a claimant is not disabled

creates, for future applications by that same claimant, a

“presumption that [the claimant] continued to be able to work

after that date.” Lester, 81 F.3d at 827 (alteration in original)

(quotation marks and citation omitted). The presumption

may be overcome with a showing of “changed

circumstances.” Id. The presumption does not apply if the

claimant was not represented by counsel when the earlier

claim for benefits was denied. Id. at 827–28.

Ahearn was not represented by counsel in connection with

his first application for benefits. Therefore, to the extent that

12 AHEARN V. SAUL

the ALJ may have applied a presumption of non-disability,

she erred. However, as the district court concluded, the ALJ

performed an independent evaluation of the evidence in the

record, including the old evidence as well as the new

evidence offered by Ahearn. Any error was therefore

harmless.

Conclusion

Considering the record as a whole, we hold that the ALJ’s

disability determination was supported by substantial

evidence. We therefore affirm the decision of the district

court.

AFFIRMED.