Gregory Mitchell v. Carolyn W. Colvin

MEMORANDUM *

Gregory Mitchell seeks judicial review of the denial of his claim for disability benefits. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm.

We review de novo the district court’s order affirming the Administrative Law Judge’s (“ALJ’s”) denial of Social Security Disability Insurance and Supplemental Security Income debility benefits, and we must independently determine whether the ALJ’s decision is free from legal error and supported by substantial evidence. See Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir.1996). “If the evidence can support either affirming or reversing the ALJ’s conclusion, we may not substitute our judgment for that of the ALJ.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir.2006).

First, Mitchell contends that the ALJ erred by giving little weight to the second assessment of treating physician Dr. Park, which was prepared in January 2010 and suggested that Mitchell was totally disabled. The ALJ instead gave great weight to a January 2009 report prepared by Dr. Park concluding that Mitchell could perform sedentary work. He also gave: (1) great weight to the *311 opinion of consulting physician Dr. Merrill, who…

Dissenting:

Despite evidence showing that Mitchell’s impairments changed over time, the ALJ discredited Mitchell’s testimony as to the severity of his limitations on the basis of a disability report that was two and a half years old. The ALJ should have considered whether Mitchell’s symptoms had worsened over time before disregarding his testimony. As the adverse credibility determination thus was fundamentally flawed, I would reverse for that reason alone. Compounding my concern is the fact that a different ALJ found Mitchell’s testimony credible and awarded him benefits a mere twenty days after Mitchell was denied benefits in this case. Accordingly, I respectfully dissent.

1. Social Security Administration rulings recognize that “[s]ymptoms may vary in their intensity, persistence, and functional effects, or may worsen or improve with time,” and that “this may explain why the individual does not always allege the same intensity, persistence, or functional effects of his or her symptoms.” SSR 96-7p, 1996 WL 374186 , at *5 (July 2, 1996). Rather than assume that an applicant whose assessments of his limitations worsen over time is not credible, “adjudicator[s] ... [are] to…

FILED

NOT FOR PUBLICATION AUG 07 2014

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

GREGORY LEE MITCHELL, No. 13-35059

Plaintiff - Appellant, D.C. No. 2:11-cv-01941-RAJ

v.

MEMORANDUM*

CAROLYN W. COLVIN, Commissioner of Social Security Administration,

Defendant - Appellee.

Appeal from the United States District Court for the Western District of Washington Richard A. Jones, District Judge, Presiding

Argued May 15, 2014 Submitted August 7, 2014 Seattle, Washington

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

Gregory Mitchell seeks judicial review of the denial of his claim for

disability benefits. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we

affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. We review de novo the district court’s order affirming the Administrative

Law Judge’s (“ALJ’s”) denial of Social Security Disability Insurance and

Supplemental Security Income disability benefits, and we must…