NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 19 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
ROBERT L. FEBACH, No. 12-36061
Plaintiff - Appellant, D.C. No. 6:11-cv-00070-DWM
v.
MEMORANDUM*
CAROLYN W. COLVIN, Commissioner
of Social Security Administration,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted May 13, 2014
Seattle, Washington
Before: O’SCANNLAIN, BERZON, and TALLMAN, Circuit Judges.
Robert L. Febach appeals the district court’s order affirming the Social
Security Commissioner’s denial of his application for disability insurance benefits.
We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
(1) The Administrative Law Judge (“ALJ”) provided “persuasive,
specific, valid” reasons for giving limited weight to the Department of Veterans
Affairs’ (VA) determination that Febach has a 20% disability rating for depression.
McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002). Although Febach
was diagnosed with depression, that diagnosis alone is insufficient for finding a
“severe” impairment, as required by the social security regulations. 20 C.F.R.
§ 404.1520(a)(4)(ii). There was sufficient evidence in the record for the ALJ to
conclude that Febach’s depression is not “severe,” including reports by at least
three of Febach’s physicians suggesting that his impairment is “non-severe.”
(2) Substantial evidence supports the ALJ’s adverse credibility
determination. Most notably, the fact that Febach spent ninety days bow hunting
in the year prior to his ALJ hearing supported the ALJ’s conclusion that Febach’s
“statements concerning the intensity, persistence and limiting effects of [his]
symptoms are not credible.” Febach testified that the bulk of his camping days
were spent driving or resting in the camper, and that he used a modified bow on
account of his inability to lift a standard one. But Febach’s hunting activities could
also reasonably suggest that he has the ability and motivation to plan and execute a
lengthy excursion in a remote location; sit in a car and drive some distance; stand
for substantial periods; and lift objects necessary for camping by oneself. These
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activities support the ALJ’s conclusion regarding Febach’s credibility as to the
functional limitations caused by his physical injuries, chronic pain, and depression.
“When evidence reasonably supports either confirming or reversing the
ALJ’s decision, we may not substitute our judgment for that of the ALJ.” Batson
v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1196 (9th Cir. 2004). We therefore
affirm the ALJ’s adverse credibility determination.
(3) In light of the adverse credibility determination and the medical
evidence, the ALJ’s residual functional capacity determination was not in error.
Febach contends that the ALJ erred by not including in the residual functional
capacity determination the effects of Febach’s chronic pain and depression, in
particular his alleged inability to consistently show up for work. Although there
was medical evidence demonstrating that Febach suffered from both chronic pain
and depression, the ALJ’s reasonable adverse credibility determination provided
“clear or convincing reasons for rejecting [Febach’s] claims,” Gallant v. Heckler,
753 F.2d 1450, 1456 (9th Cir. 1984), as to the intensity, persistence and limiting
effects of his symptoms, including his inability to show up for work regularly.
Therefore, the ALJ did not err in failing to incorporate those limitations into the
residual functional capacity determination, or in failing to consider the vocational
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expert’s testimony that a person who could not attend work regularly would not be
able to find substantial gainful employment in the national economy.
AFFIRMED.
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