Burrell v. Colvin, No. 12-16673 (9th Cir. December 31, 2014), 2015 DJDAR 17 (January 2, 2015)download film John Wick: Chapter 2

This is another strong 9th Circuit Social Security disability opinion upholding the standards for assessing pain testimony set forth in Bunnell v. Sullivan, 947 F.2d 341 (9th Cir. 1991) (en banc), requiring an ALJ to set forth “specific, clear and convincing reasons” for rejecting a claimant’s pain testimony after the claimant has provided objective evidence of an impairment that might reasonably cause the complained-of pain. Here the majority sets aside the ALJ’s denial of the claim for failure to specify which specific testimony was undermined by which specific medical evidence: “We may not take a general finding — an unspecified conflict between claimant’s daily activities and her reports to doctors — and comb the administrative record to find specific conflicts.”

Although the majority sets aside the denial of benefits for the ALJ’s deficient findings on credibility, and for failure to give “specific and legitimate reasons” for rejecting the treating doctor’s assessment, the case is remanded for a new hearing due to the majority’s “serious doubt” on the ultimate issue of disability. In dissent, Judge Schroeder would simply remand for payment of benefits.

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.