Treichler v. Commissioner of Social Security, No. 12-35944 (9th Cir. December 24, 2014), 2014 DJDAR 16956 (December 26, 2014)
The plaintiff sought Title II disability benefits stemming from a fall from a tree which fractured his lumbar spine, along with a number of other bones, ultimately leaving him in severe pain (severe enough for methadone treatment) and occasionally incontinent. The ALJ denied the claim, finding the claimant could perform “light” work and rejecting the claimant’s allegations concerning the severity of his symptoms.
Here the 9th Circuit readily overturns the ALJ’s adverse credibility determination, finding that the recitation of boilerplate language to the effect that the claimant’s testimony was “inconsistent with the medical evidence” failed to meet the tests for specificity set forth in Bunnell v. Sullivan, 947 F.2d 341 (9th Cir. 1991) (en banc) — a LSNC case — and that this error was not harmless. Most of the opinion discusses the plaintiff’s argument — supported by the dissenting judge — that the case ought not to be remanded for a new hearing but for an outright award of benefits, under the rule set forth in Varney v. Sec’y of HHS, 859 F.2d 1396 (9th Cir. 1988), and its many progeny. After a lengthy analysis, the majority concludes that a new hearing is necessary. Judge Tashima, in dissent, contends that the factors in Varney are met, i.e., if the claimant’s allegations are credited as true, then the ALJ would have to find him disabled, there are no other outstanding issues to be resolved, and therefore a finding of disability should be entered.