Vasquez v. Astrue

• Decision Date: 05 November 2008
• Docket Number: No. 06-16817.,06-16817.
• Citation: 572 F.3d 586
• Parties: Priscilla VASQUEZ, Plaintiff-Appellant, v. Michael J. ASTRUE, Commissioner of Social Security, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

572 F.3d 586

Priscilla VASQUEZ, Plaintiff-Appellant, v. Michael J. ASTRUE, Commissioner of Social Security, Defendant-Appellee.

No. 06-16817.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 15, 2008.

Filed November 5, 2008.

Amended July 8, 2009.

James Hunt Miller, Oakland, CA, for the plaintiff-appellant.

John C. Cusker, Special Assistant United States Attorney, Office of the General Counsel, Social Security Administration, San Francisco, CA, for the defendant-appellee.

Appeal from the United States District Court for the Northern District of California, James Ware, District Judge, Presiding. D.C. No. CV-05-03857 JW.

Before: DIARMUID F. O'SCANNLAIN and HAWKINS, Circuit Judges, and JAMES V. SELNA,^* District Judge.

Opinion by Judge SELNA; Concurrence by Judge HAWKINS; Dissent by Judge O'SCANNLAIN.

ORDER AND AMENDED DISSENT

SELNA, District Judge:

ORDER

The opinion issued on November 5, 2008 is amended by inserting the following after the first paragraph of Judge O'Scannlain's dissent on page 15123, 2008 WL 4791860:

Subsequent to our decision in this case, the government petitioned for rehearing en banc, arguing that the crediting-as-true rule is invalid because it is contrary to both statute and Supreme Court precedent. Vasquez did not respond to the government's arguments in detail, and so I do not opine whether the government is right. However, the case appears strong. The government asserts that under the Social Security Act the Commissioner — not a federal court — is the factfinder. See 42 U.S.C. § 405(g) (findings of Commissioner are conclusive so long as substantial evidence supports them). While the statute prohibits a claimant's testimony concerning pain or other symptoms alone from establishing a disability, this appears to be exactly what the crediting-as-true rule would require. Cf. 42 U.S.C. § 523(d)(5)(A) ("An individual's statement as to pain or other symptoms shall not alone be conclusive evidence of disability as defined in this section; there must be medical signs and findings ... which show the existence of a medical impairment ... which could reasonably be expected to produce the pain or other symptoms alleged and which, when considered with all evidence ... would lead to a conclusion that the individual is under a disability." (emphasis added)). The government notes that the general rule (subject to "rare" exceptions) "is to remand to the agency for additional investigation or explanation." INS v. Ventura, 537 U.S. 12, 16, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam). We do not credit-as-true in only "rare" cases; according to the government, we took some factfinding responsibility away from the Commissioner in at least twenty-two cases during 2007 and 2008.

The government finally notes that other circuits will remand for determination of benefits only in narrow circumstances. See, e.g., Faucher v. Sec'y of Health & Human Servs., 17 F.3d 171, 176 (7th Cir.1994) ("If a court determines that substantial evidence does not support the Secretary's decision, the court can reverse the decision and immediately award benefits only if all essential factual issues have been resolved and the record adequately establishes a plaintiff's entitlement to benefits."); see also Miller v. Chater, 99 F.3d 972 (10th Cir.1996) (remanding for a fifth administrative hearing, but warning that "the Secretary is not entitled to adjudicate a case ad infinitum until [he] correctly applies the proper legal standard and gathers evidence to support [his] conclusion" (internal quotation marks omitted)). If, as the government argues, crediting-astrue is a de facto finding of disability, then our circuit's precedent is badly misaligned with that of other circuits.

Of course, because the crediting-as-true rule is part of our circuit's law, only an en banc court can change it. Although no judge has chosen to call for en banc rehearing in this case, I am hopeful that the en banc court will consider the argument when it is presented more directly in another case (e.g., one where there is an explicit remand for immediate payment of benefits based on the rule). Because the crediting-as-true rule applies in every case where a court finds no substantial evidence to support the Commissioner's decision, the issue is of exceptional importance. This is particularly so because the "Social Security hearing system is probably the largest adjudicative agency in the western world." Heckler v. Campbell, 461 U.S. 458, 461, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983) (noting that 2.3 million claims for disability benefits were filed in 1981).

II

Judge O'Scannlain has voted to grant the petition for rehearing en banc and Judge Selna has so recommended. Judge Hawkins has voted to deny the petition for rehearing en banc.

The full court has been advised of the petition for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

The petition for rehearing en banc is DENIED. No further petitions for rehearing or rehearing en banc may be filed.

OPINION

OVERVIEW

Priscilla Vasquez ("Vasquez") appeals from the district court's grant of summary judgment for the Commissioner of Social Security ("the Commissioner") upholding a denial of Disability Insurance Benefits under 42 U.S.C. § 401 et seq. and Supplemental Security Income benefits under 42 U.S.C. § 1381 et seq. Vasquez claims that the Commissioner improperly discounted her symptom reporting, failed to consider evidence of her severe mental impairment, and improperly applied principles of res judicata.

We vacate the district court's judgment and remand to the Commissioner for a hearing on the issue of whether Vasquez is entitled to benefits.

FACTUAL BACKGROUND

Vasquez applied for Disability Insurance Benefits and Supplemental Security Income benefits in September 1997, alleging an inability to work since October 1995 because of low back pain and other musculoskeletal impairments. The application was denied initially and again on reconsideration. At the initial hearing, Administrative Law Judge ("ALJ") Richard Stacy ("ALJ Stacy") also found that Vasquez was not disabled and denied her application. The decision of ALJ Stacy discussed Vasquez's back injuries and limited education, but did not discuss whether Vasquez may have also suffered from cognitive impairments because Vasquez did not raise that issue in her application. The Social Security Administration ("SSA") Appeals Council denied review of ALJ Stacy's decision.

Vasquez subsequently filed a new application for benefits, alleging an inability to work since November 2001. After the Commissioner denied her application, she requested an ALJ hearing. Vasquez's application specified that she suffered from ongoing problems due to a back injury, as well as cognitive impairments resulting in significant learning problems.

ALJ Sandra Rogers ("ALJ Rogers," or "the ALJ") found that while Vasquez was not able to perform her past work as a housekeeper due to a "severe" back disorder, she retained the residual function capacity to perform "light exceptional work activity" and therefore was not disabled. Although ALJ Rogers did not make any explicit findings regarding Vasquez's alleged cognitive impairments, she discussed the mental health and capacity evidence presented, and seems to have implicitly found that these impairments were not "severe" and/or did not impact Vasquez's residual function capacity.

In appealing this decision to the SSA Appeals Council, Vasquez presented additional evidence of psychological testing from Dr. Ubaldo Sanchez ("Dr. Sanchez") to bolster her claims of cognitive impairment. The Appeals Council reviewed the ALJ's findings as well as the additional evidence and found that Dr. Sanchez's report did not warrant any change in the ALJ's decision. The district court affirmed the ALJ's decision when it granted summary judgment in favor of the Commissioner and declined to set aside the ALJ's denial of benefits.

DISCUSSION

Standard of Review

We review the district court's order affirming denial of benefits de novo. Schneider v. Comm'r of Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir.2000). It may "set aside the Commissioner's denial of benefits when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole." Id. "Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.1995). This Court "review[s] the administrative record as a whole" to determine whether substantial evidence supports the ALJ's decision. Id. "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities." Id. "[W]here the evidence is susceptible to more than one rational interpretation," the ALJ's decision must be affirmed. Id. at 1039-40.

Credibility of Vasquez's Symptom Reporting

Vasquez argues that ALJ Rogers did not properly credit her symptom reporting when she found that Vasquez's allegations as to the "intensity, persistence, and limits effects of [her] symptoms were not well supported by the probative evidence and [were] not wholly credible."

In evaluating the credibility of a claimant's testimony regarding subjective pain, an ALJ must engage in a two-step analysis. Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir.2007). "First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged." Id. at 1036 (internal citations and quotation marks omitted). The claimant is not required to show that her impairment "could reasonably be expected to cause the severity of the symptom she has alleged; she need only show that it could...