Court to ALJs: You Can’t Just Say,” I Don’t Believe The Claimant’s Pain Testimony.”

Brown-Hunter v. Colvin, No.13-15213, 2015 DJDAR 8883 (9th Cir. August 4, 2015).

This could be a very important Ninth Circuit Social Security disability opinion because it appears to be an effort by Judge Wallace–who ironically in his long career has authored far more opinions upholding the denial of disability benefits than reversing such denials–to write a definitive instructional guide for Administrative Law Judges on how to assess a disability applicant’s testimony concerning disabling pain (or other symptoms). This issue, is of course, a recurring one in Social Security disability cases, and periodically over the decades the Ninth Circuit has issued opinions which attempted, unsuccessfully, to be the “final word” on the evaluation of pain testimony.

In this case the Court reverses the denial of benefits,which was supported in part by the ALJ’s finding that the claimant’s “statements concerning the intensity, persistence and limiting effects of [her] symptoms are not credible to the extent they are inconsistent” with the medical evidence. (This is a common boilerplate sentence found in ALJ opinions).

The Court’s summary of the legal standard governing this issue is worth repeating in full: “When an [ALJ} determines that a claimant for Social Security benefits is not malingering and has provided objective medical evidence of an underlying impairment which might reasonably produce the pain or other symptoms she alleges, the ALJ may reject the claimant’s testimony about the severity of those symptoms only by providing specific, clear, and convincing reasons for doing so. We hold that an ALJ does not provide [such reasons] simply by reciting the medical existence in support of his or her residual functional capacity assessment. To ensure that our review of the ALJ’s credibility determination is meaningful, and that the claimant’s testimony is not rejected arbitrarily, we require the ALJ to specify which testimony she finds not credible, and then provide clear and convincing reasons, supported by evidence in the record, to support that credibility determination.”

Not satisfied with re-articulating the pain testimony credibility standard, Judge Wallace addresses two other issues subject to recent debate in different circuit Social Security cases: (1) “harmless error,” which the courts should be “cautious” about finding, and which should never apply to errors in assessing credibility determinations, and (2) whether, after a reversal of benefits for legal errors, the case should be remanded for immediate payment of benefits (only under “rare circumstances”) or sent back for further administrative proceedings (which Judge Wallace clearly thinks is the usual course that should be followed).