Burrell v. Colvin

• Decision Date: 31 December 2014
• Docket Number: Nos. 12–16673.,s. 12–16673.
• Citation: 775 F.3d 1133
• Parties: Adrian BURRELL, Plaintiff–Appellant, v. Carolyn W. COLVIN, Commissioner of Social Security, Defendant–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

775 F.3d 1133

Adrian BURRELL, Plaintiff–Appellant

v.Carolyn W. COLVIN, Commissioner of Social Security, Defendant–Appellee.

Nos. 12–16673.

United States Court of Appeals, Ninth Circuit.

Argued June 11, 2014.

Resubmitted Dec. 19, 2014.

Filed Dec. 31, 2014.

Eric G. Slepian (argued), Slepian Law Office, Phoenix, AZ, for Plaintiff–Appellant.

Sarah Van Arsdale Berry (argued), Special Assistant United States Attorney, Social Security Administration, General Counsel's Office, Denver, CO; Michael A. Johns, Assistant United States Attorney, Phoenix, AZ, for Defendant–Appellee.

Appeal from the United States District Court for the District of Arizona, Susan R. Bolton, District Judge, Presiding. D.C. No. 2:11–cv–00749–SRB.

Before: MARY M. SCHROEDER, SUSAN P. GRABER, and JAY S. BYBEE, Circuit Judges.

OPINION

GRABER, Circuit Judge:

Claimant Adrian Burrell applied for social security disability benefits primarily because of debilitating headaches resulting from neck and back conditions. An administrative law judge (“ALJ”) found her not disabled, the Appeals Council denied review, and the district court affirmed the denial of benefits. We conclude that substantial evidence supports neither the ALJ's rejection of Claimant's testimony nor his rejection of the medical assessment by Claimant's treating physician, Dr. William Riley. Accordingly, we reverse the district court's decision. But, because we have “serious doubt” as to whether Claimant is, in fact, disabled, Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir.2014), the district court shall remand the case to the ALJ for further proceedings on an open record; that is, on remand, we do not require the ALJ to credit as true Claimant's testimony, Dr. Riley's assessment, or any other evidence.

FACTUAL AND PROCEDURAL HISTORY

Claimant filed an application for benefits, alleging a disability onset date of December 18, 2007. For years, Claimant has suffered pain and headaches resulting from various neck and back conditions, including a tumor near the cervical spine, disc herniation, degenerative disc conditions, and a broad-based disc bulge. Medical providers tracked degenerative disc changes from the early 1990s through 2009, when she underwent back surgery following a seizure. Claimant long had suffered from mild tingling in her left hand. After surgery, she experienced great difficulty gripping and grasping items with her left hand.

At the hearing before the ALJ, Claimant testified that she experiences an average of one to two debilitating migraine headaches per week. When they occur, the headaches require her to lie down in a dark room for the remainder of the day. Claimant testified that, because of neck and back pain, she is able to stand, walk, and sit for limited durations only. She experiences pain when lifting heavy objects and has trouble sleeping.

The ALJ issued a written decision concluding that Claimant is not disabled for purposes of the Social Security Act. The ALJ concluded that Claimant has “severe” impairments of “chronic neck and low back pain ...; impaired grip in the left hand; and chronic headaches

.” But she has the residual functional capacity to perform “medium exertion” with additional limitations that she avoid exposure to workplace hazards and not operate an automobile. In reaching that conclusion, the ALJ found Claimant's testimony not credible to the extent that it conflicted with the residual functional capacity, and he rejected the contrary conclusions of Claimant's primary care doctor, Dr. Riley. Finally, the ALJ concluded that Claimant was not disabled because she can perform her past relevant work as a receptionist and a manicurist.

Claimant sought review by the Appeals Council. As part of that review, she submitted additional medical evidence. The Appeals Council denied review. Claimant filed this action, and the district court affirmed the denial of benefits in a written order. Claimant timely appeals.

STANDARDS OF REVIEW

We review de novo the district court's order affirming a denial of social security benefits. Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir.2012).

When, as here, “the Appeals Council considers new evidence in deciding whether to review a decision of the ALJ, that evidence becomes part of the administrative record, which the district court [and this court] must consider when reviewing the Commissioner[ of Social Security]'s final decision for substantial evidence.” Brewes v. Comm'r of Soc. Sec. Admin., 682 F.3d 1157, 1163 (9th Cir.2012).

Where, as here, Claimant has presented evidence of an underlying impairment and the government does not argue that there is evidence of malingering,¹ we review the ALJ's rejection of her testimony for “specific, clear and convincing reasons.” Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir.2012). The government disputes that standard of review. Relying primarily on Bunnell v. Sullivan, 947 F.2d 341 (9th Cir.1991) (en banc), the government argues that we review the ALJ's decision only for specific reasons and that “clear and convincing” reasons are not required. We disagree.

In Bunnell, we resolved a longstanding conflict in the cases about whether a claimant must produce objective medical evidence to demonstrate the extent of his or her pain. Id. at 342. As part of our analysis, we concluded that the ALJ's reasons for rejecting a claimant's testimony must be “specific.” Id. at 345. It is true that the Bunnell court did not mention “clear and convincing reasons.” But that standard predated the decision in Bunnell, e.g., Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir.1989) ; Gallant v. Heckler, 753 F.2d 1450, 1455 (9th Cir.1984), and there is no indication that Bunnell intended to overrule that precedent. Indeed, the cases following Bunnell read it as supplementing the “clear and convincing” standard with the requirement that the reasons also must be “specific.” E.g., Johnson v. Shalala, 60 F.3d 1428, 1433 (9th Cir.1995). Our more recent cases have combined the two standards into the now-familiar phrase that an ALJ must provide specific, clear, and convincing reasons. Molina, 674 F.3d at 1112. There is no conflict in the caselaw, and we reject the government's argument that Bunnell excised the “clear and convincing” requirement. We therefore review the ALJ's discrediting of Claimant's testimony for specific, clear, and convincing reasons.

Finally, because other doctors' opinions contradicted the opinion of Dr. Riley, we review the ALJ's rejection of Dr. Riley's opinion for “specific and legitimate reasons that are supported by substantial evidence.”Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir.2005).

DISCUSSION

Claimant challenges the ALJ's adverse credibility determination and his rejection of Dr. Riley's reports.² The parties also dispute the appropriate remedy, in the event that we conclude that the ALJ erred.

A. Claimant's Credibility

After stating the residual functional capacity, the ALJ wrote:

After careful consideration of the evidence, the undersigned finds that the claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with the above residual functional capacity assessment.

The ALJ's decision then drifts into a discussion of the medical evidence; it provides no reasons for the credibility determination. Sifting through the ALJ's decision, the government finds three reasons for the adverse credibility determination, albeit dispersed in seemingly random places in the decision. We address those reasons in turn.

1. Daily Activities Inconsistent with Testimony

The ALJ noted, three single-spaced pages after the adverse credibility determination, in the midst of an analysis of medical sources, that “the claimant's self-reports to the physical therapist do not indicate the degree of limitation suggested by the medical source statement, and indeed is inconsistent with the claimant's testimony at [the] hearing.” Inconsistencies between a claimant's testimony and the claimant's reported activities provide a valid reason for an adverse credibility determination.

Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir.1997).

But the ALJ did not elaborate on which daily activities conflicted with which part of Claimant's testimony. The only mention found in the ALJ's decision is five pages earlier, when summarizing Claimant's testimony: “Although she testified she was unable to use a vacuum, she reported to the physical therapist that she did use the vacuum and was able to perform most housekeeping activities.”³ As to vacuuming, Claimant stated at the hearing in December 2009:

Vacuuming and I don't get along well at this point. It hurts to do the stretching and pulling. I occasionally sweep with a broom and dustpan, wipe down the kitchen counters, sometimes load the dishwasher. It takes longer because I have to use my right hand to do it.

The ALJ cited six worksheets that asked Claimant whether her impairments affected her ability to do chores such as, specifically, vacuuming. In those worksheets, which span the period March 2009 to June 2009, Claimant checked the box “Yes, Limited a little” five times, and she once checked the box for “Yes, Limited a lot.” Also in June 2009, the physical therapist reported, without elaboration, that Claimant “can push the vacuum.”

Substantial evidence does not support the ALJ's determination that there is a conflict concerning Claimant's ability to vacuum. Claimant consistently reported to the physical therapist that she had trouble vacuuming, which is entirely consistent with her testimony at the hearing that stretching and pulling, which are required to vacuum, cause her pain. Claimant did not testify that she never could vacuum; she stated that vacuuming was difficult for her “at this point. ” (Emphasis added.)

Perhaps recognizing the flaw in the ALJ's reasoning about...