Valentine v. Commissioner Social Sec. Admin.

• Decision Date: 20 July 2009
• Docket Number: No. 08-35374.,08-35374.
• Citation: 574 F.3d 685
• Parties: Jerry C. VALENTINE, Plaintiff-Appellant, v. COMMISSIONER SOCIAL SECURITY ADMINISTRATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

574 F.3d 685

Jerry C. VALENTINE, Plaintiff-Appellant, v. COMMISSIONER SOCIAL SECURITY ADMINISTRATION, Defendant-Appellee.

No. 08-35374.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 5, 2009.

Filed July 20, 2009.

Linda S. Ziskin, Lake Oswego, OR, argued the cause for the appellant and filed the briefs. Martin R. Cohen, Lake Oswego, OR, was also on the briefs.

Thomas M. Elsberry, Assistant Regional Counsel, Social Security Administration, Seattle, WA, argued the cause for the appellee and filed the brief. Karin J. Immergut, United States Attorney, Britannia I. Hobbs, Assistant United States Attorney, and David Morado, Regional Chief Counsel, Social Security Administration, Seattle, WA, were also on the brief.

Appeal from the United States District Court for the District of Oregon, Garr M. King, District Judge, Presiding. D.C. No. 3:07-cv-00034-KI.

Before: ALFRED T. GOODWIN, DIARMUID F. O'SCANNLAIN, and RAYMOND C. FISHER, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

We must determine the circumstances under which the Social Security Administration can find that a claimant for disability insurance benefits is not disabled despite a contrary finding by the Department of Veterans Affairs.

I

Jerry Valentine filed an application with the Social Security Administration ("SSA") for Social Security disability insurance benefits in March 2005. He alleged disability beginning the previous year. A former member of the Navy, Valentine suffered a combat head injury in Vietnam in 1969. Since then, he has held several jobs, most recently as a "parts man" for a diesel engine distributor called Cummins Northwest Incorporated. In March 2004, he retired from Cummins.

Valentine complains of post-traumatic stress disorder ("PTSD"), a combination of depression and sleep deprivation (sometimes referred to in the record as cognitive disorder secondary sleep deprivation), and degenerative joint disease in his right shoulder and left knee. The PTSD resulted from Valentine's head injury in Vietnam, but it appears to have worsened significantly in the wake of the death of his brother from a head injury in the summer of 2000. Valentine received treatment for the PTSD and for sleep disturbance and persistent nightmares at the Veterans Administration Medical Center in Portland, Oregon, from September of 2000 through the date of the hearing before the Administrative Law Judge ("ALJ").

While undergoing sleep therapy in 2001, Valentine began treatment with Dr. Lynn M. Van Male. At the time, Valentine reported that he got a good night's sleep about three days out of each week. Valentine's performance at work was erratic; he received several "marginal" performance ratings on his annual job review in February 2002.

Dr. Van Male referred Valentine to Dr. Daniel Storzbach for a neuropsychological assessment. The results "suggested average baseline cognitive ability"; performance on some of the specific tests indicated "normal limits or better." However, other tests indicated impaired performance with respect to attention, working memory, and complex pyschomotor function. Dr. Storzbach seemed to attribute these difficulties to the exacerbation of Valentine's PTSD symptoms following his brother's death. He recommended several ways to cope and noted that Valentine would probably have less difficulty with "highly routinized, over-learned tasks with low cognitive demand."

Meanwhile, Valentine, with Dr. Van Male's help, tried to increase his disability rating, which then stood at 30 percent, from the Department of Veterans Affairs ("VA"). In a letter to the VA written in May 2002, Dr. Van Male stated that Valentine had tried to hold down his job "at significant cost to himself," but that she worried about his ability to maintain employment "given his current rate of functional decline." At the time, Valentine was reporting increased mental stability at work and at home (for example, he was able to garden with his wife), despite his sleeping problems. The VA raised his disability rating to 70 percent.

Though difficulties persisted during 2003, Valentine managed them reasonably well. He continued to work and paid off credit card and truck loan debts. His performance review in January 2003 was positive, his ratings being in the "acceptable" to "commendable" range. Whether because his fatigue and associated ailments became too much for him or because he became eligible to receive his employee pension, Valentine planned to retire in March 2004.

Things improved as Valentine's planned retirement date approached. He received positive reviews in February from his supervisor, Lane Anthony. Anthony praised Valentine's attitude as "outstanding," called him "a wonderful asset to the company's front counter," and noted improvement in his work product.¹ Valentine assured company executives that he was ready and willing to retire, despite their offers of a shortened or split shift, because he believed it was in his best interests. After his retirement, Valentine's condition continued to improve as he exercised and took up projects to keep busy. He even stopped regular visits with Dr. Van Male in November 2004.

Valentine requested another increase in his disability rating from the VA. Dr. Leslie Carter interviewed him in October 2004 and found "well-documented" Valentine's assertion that his nightmares and sleep deprivation were "extremely disabling." Dr. Carter, however, was under the impression that Valentine had quit working at Cummins because he was about to be fired. Initially the VA did not act, despite Dr. Carter's report. But after Dr. Van Male sent further letters in 2005 and 2006, the VA ultimately raised Valentine's disability rating to 100 percent.

In addition to his PTSD, Valentine sustained two physical injuries in 2005. He tore some cartilage in his shoulder and damaged his left knee. He underwent surgery for both injuries. In September 2005, two months before surgery on his knee, Valentine took a physical examination, which did not suggest any significant physical impairment.

Several psychologists, including a Dr. Peter LeBray, reviewed Valentine's medical record on behalf of the SSA. The ALJ considered this evidence, along with the rest of Valentine's file, at a hearing in March of 2006. Ultimately, the ALJ decided that Valentine was not disabled and denied him benefits. The Appeals Council declined review, making the ALJ's decision the final decision of the Commissioner. Valentine filed a civil action in the district court to obtain judicial review of the agency's decision. The district court affirmed the denial of benefits, and Valentine now appeals.

II

To establish eligibility for Social Security disability benefits, a claimant has the burden to prove he is disabled. See Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995).

Like most Social Security cases, this case involves the agency's five-step procedure for determining disability. See 20 C.F.R. § 404.1520(a)(4)(i)-(v); see also Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir.2001). The ALJ's decision turned on her conclusion at step five. While the claimant has the burden of proof at steps one through four, "the burden of proof shifts to the [Commissioner]" at step five "to show that the claimant can do other kinds of work." Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir.1988). To direct this inquiry, the Commissioner, through the ALJ, must determine the claimant's "residual functional capacity," a summary of what the claimant is capable of doing (for example, how much weight he can lift). The ALJ may, and did here, pose to a vocational expert a hypothetical incorporating the residual functional capacity determination ("RFC"); the expert then opines on what kind of work someone with the limitations of the claimant could hypothetically do. See Roberts, 66 F.3d at 184. The ALJ must then determine whether, given the claimant's RFC, age, education, and work experience, he actually can find some work in the national economy. See Tackett v. Apfel, 180 F.3d 1094, 1100-01 (9th Cir.1999); 20 C.F.R. § 404.1520(a)(4)(v).

We "review[ ] the district court's order affirming the [Commissioner]'s denial of benefits de novo ... to ensure that the [Commissioner]'s decision was supported by substantial evidence and a correct application of the law." Roberts, 66 F.3d at 182 (internal citation omitted). This is a highly deferential standard of review: "`Substantial evidence' means more than a mere scintilla, but less than a preponderance. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir.1988) (internal quotation marks and citations omitted).

III

Before reviewing the details of the ALJ's decision, we must dispose of a threshold issue. Valentine alleges that the ALJ denied him due process "because of the ALJ's attitude and demeanor." He claims that several of the ALJ's pointed questions and expressions of disbelief made the administrative hearing less than full and fair.

Valentine does not allege that the ALJ was biased against him. Instead, he merely suggests that the ALJ had prejudged his case in some way. We can find no legal authority for the proposition that general preconceptions that do not amount to bias violate the Due Process Clause.

Even if we construe Valentine's complaint to allege actual bias, he has mustered no evidence that comes close to the required showing. ALJs are presumed to be unbiased. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir.2001). Such presumption "can be rebutted by a showing of conflict of interest or some other specific reason for disqualification. ... But expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women sometimes display[,] do not establish bias." Id. at 857-58 (internal quotation marks omitted). That the ALJ questioned...