Robert Sherman v. Carolyn W. Colvin

Dissenting:

Substantial evidence does not support the ALJ’s finding that claimant Robert Sherman lacks credibility. Accordingly, I dissent.

I

1. Contrary to the ALJ’s assessment, Sherman’s sporadic work history before his 2009 filing date is entirely consistent with his testimony. Sherman’s back injury occurred in 1992. Although he attempted to keep working after the injury, his back problems worsened in 1998, when he re-injured himself in a car accident. When Sherman protectively filed in 2009, he alleged a disability onset date of 1998. He amended that date because he did not have the medical records to prove his case that far back. But treatment notes from 2001 and 2004 do indicate that Sherman was in serious pain from back problems during this time, and that when he did work, he “exacerbated his injury in the low[er] back.” Thus, Sherman’s sporadic work history before his filing date does not show that factors other than his disability prevented him from working, and is in fact consistent with his account of his back injury.

2. The second reason the panel gives in support of the ALJ’s credibility determination is Sherman’s lack of cooperation with state vocational…

MEMORANDUM *

Robert Sherman appeals the denial of his application for supplemental security income under the Social Security Act. 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.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir.2012). We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm.

Substantial evidence supports the ALJ’s adverse credibility determination. The ALJ offered “specific, clear and convincing reasons” for rejecting Sherman’s testimony about his limitations and pain to the extent that his testimony conflicted with the residual functional capacity as *748 sessment. Molina , 674 F.Bd at 1112 (internal quotation marks omitted). First, the ALJ noted Sherman’s sporadic work history before he filed for disability and the fact that his job rehabilitation services case worker closed his file for failure to cooperate and participate in job searching. See Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir.2002).

Second, the ALJ relied on physicians’ observations that Sherman exhibited “self-limiting behaviors” and had “poor credibility.” Dr. Hurd, an examining…

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT JUL 09 2014

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

ROBERT D. SHERMAN, No. 13-35042

Plaintiff - Appellant, D.C. No. 1:12-cv-00035-CSO

v.

MEMORANDUM*

CAROLYN W. COLVIN, Commissioner of Social Security Administration,

Defendant - Appellee.

Appeal from the United States District Court for the District of Montana Carolyn S. Ostby, Magistrate Judge, Presiding

Argued and Submitted May 14, 2014 Seattle, Washington

Before: O’SCANNLAIN, KLEINFELD, and BERZON, Circuit Judges.

Robert Sherman appeals the denial of his application for supplemental

security income under the Social Security Act. We “reverse only if the ALJ’s

decision was not supported by substantial evidence in the record as a whole or if

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. the ALJ applied the wrong legal standard.” Molina v. Astrue, 674 F.3d 1104, 1110

(9th Cir. 2012). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we

affirm.

Substantial…