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).

Inconsistencies Between Vocational Expert Testimony, Dictionary of Occupational Titles and Characteristics of Claimant’s Mental Impairments Require Remand of Denial of Disability Benefits

Rounds v. Commissioner, SSA, No 13-35505, 2015 DJDAR 8892 (9th Cir. August, 4, 2015).

In this Supplemental Security Income disability case, the court concludes that a potential inconsistency between (1) the ALJ’s findings as to the claimant’s cognitive impairments, and (2) the cognitive requirements of certain jobs listed in the Dictionary of Occupational Titles, which a vocational expert testified the claimant could perform, required a remand for a new hearing to explore that issue. In less favorable rulings, the court upheld the ALJ’s rejection of some of the claimant’s treating doctors’ findings, and most troubling, upheld the ALJ’s rejection of both the claimant’s and two lay witnesses’ testimony concerning the claimant’s disabling pain, in part by accepting the ALJ’s finding that the claimant had a “secondary motive”–i.e., her interest in receiving disability benefits–to exaggerate her symptoms. (The ALJ’s credibility findings, upheld by this panel, seem patently inadequate compared to the standard articulated by another panel, in a different case published on the same day: Brown-Hunter v. Colvin.

No medical degree, no respect: Ninth Circuit upholds ALJ’s rejection of nurse practitioner’s opinion that claimant’s fibromyalgia is disabling.

Britton v. Colvin, No. 13-35626, 2015 DJDAR 6021 (9th Cir. June 2, 2015).

In this Social Security disability case, the applicant asserted that she was unable to work due to an assortment of ailments, primarily fibromyalgia. Her claim was doomed by (1) a medical expert who testified at her hearing that she was capable of “light” work; and (2) a vocational expert who testified that such work included some of her past jobs. On appeal, the claimant argued that the ALJ’s decision improperly discounted the opinion of her treating nurse practitioner, who stated that claimant’s fibromyalgia rendered her incapable of any kind of work. The court rejects this contention, noting that under circuit precedent, nurse practitioners generally do not qualify as “accepted medical sources,” unless they are working under the supervision and as an “agent” of a physician, and in this case such evidence was lacking. Thus the nurse’s opinion was relegated to the lesser evidentiary category of “other sources,” depriving it of the deference due to a treating medical provider, and allowing the ALJ to discount it based on the medical expert’s testimony of “light work” capability.

Disability Applicant Finds ALJ’s Legal Errors To Be More Than “Harmless”

Marsh v. Colvin, No. 12-17014, 2015 DJDAR 6863 (9th Cir. June 18, 2015)

In this Social Security disability case, the claimant, who suffered from a variety of physical impairments, sought judicial review of the denial of her claim. She primarily contended that the Administrative Law Judge committed reversible error in failing to even mention the notes from one of her treating physicians finding that she “appears to be disabled” and is “pretty much non-functional.” The district court acknowledged that the ALJ erred in not even mentioning the notes, let alone not presenting, as required by Circuit precedent, “specific and legitimate reasons supported by substantial evidence” for disregarding the treating physician’s opinion. Strangely, however, the district court applied a “harmless error” analysis and concluded that the ALJ’s error was indeed harmless.

On appeal, the Ninth Circuit acknowledges that district courts may apply a harmless error analysis to disability cases, but finds that in view of the magnitude of the ALJ’s error in this case, it could not “confidently conclude,” with a “heightened degree of certainty,” that the error was harmless. The court also construed the “treating source” rule rather liberally, in finding that the provider in question was indeed a “treating physician.” On the other hand, the court interpreted the ALJ’s latitude in rejecting pain testimony less generously for the claimant, allowing the ALJ to discount the claimant’s pain allegations because her pain treatment and medication were “conservative,” and because the claimant attended vocational rehabilitation therapy sessions which required various physical activities. The case was remanded to the ALJ with an “invitation” for him to ‘comment” on the medical notes at issue.

9th Circuit decision strongly reaffirms standard for assessing pain in disability cases

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.

ALJ findings based on boilerplate recitations, not specific medical evidence, rejected by 9th Circuit

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.