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.