JAMES A. TEILBORG, District Judge.
Plaintiff appeals from Defendant's denial of her claim for social security disability benefits. Defendant, upon review of the record, concedes that this Court should remand this case to the agency. The dispute between the parties arises over whether this Court should remand for an immediate award of benefits or for further proceedings to develop the record to determine whether Plaintiff is entitled to benefits. More specifically, Defendant concedes that the Administrative Law Judge ("ALJ") who presided over Plaintiff's hearing and issued a decision did not properly address certain medical professionals' testimony.
The ALJ can reject the opinion of a treating physician in favor of the conflicting opinion of another examining physician "if the ALJ makes `findings setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record.'" Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir.2002) (quoting Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir.1989)). Here, Defendant concedes that the ALJ did not give specific and legitimate reasons for not relying on the testimony of Dr. DeJesus, Dr. Lanier, Nurse Henderson, or Dr. Mason.
Plaintiff argues that given the Defendant's concession, this Court should credit-as-true the testimony of these medical providers. Plaintiff then concludes that after crediting these opinions as true, this Court should remand for an award of benefits.
Defendant argues that under Strauss v. Comm'r of Soc. Sec. Admin., 635 F.3d 1135, 1137 (9th Cir.2011), this Court can remand for an award of benefits only when the record shows the claimant is in fact disabled as defined by the statute. Defendant says this result is mandated "no matter how egregious the ALJ's errors may be." Id. The bottom line of this argument is that this Court cannot award disability benefits to a non-disabled person as a
This Court has the discretion to remand this case for the ALJ to further develop the record or to award benefits to Plaintiff. Reddick v. Chater, 157 F.3d 715, 728 (9th Cir.1998); Swenson v. Sullivan, 876 F.2d 683, 689 (9th Cir.1989). The Ninth Circuit Court of Appeals ("Ninth Circuit") has provided guidance for the appropriate exercise of the award of benefits discretion. Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir.2000). According to the Ninth Circuit, evidence should be credited and an action remanded for the immediate award of benefits when the following three factors are satisfied:
Id. (quoting Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir.1996)).
In applying factors two and three above, the Ninth Circuit has adopted the "credit-as-true" rule. "Where the [ALJ] fails to provide adequate reasons for rejecting the opinion of a treating or examining physician, we credit that opinion as a matter of law." Lester v. Chater, 81 F.3d 821, 834 (9th Cir.1995) (internal quotations omitted). In clarifying what credit-as-true means, the Ninth Circuit adopted the same test for medical testimony it had previously used for a claimant's pain testimony. Harman, 211 F.3d at 1178-79. Specifically, the Court stated,
Id. at 1179 (internal modifications of original quotation omitted).
Applying the credit-as-true rule, the Harman Court further stated that if after crediting Dr. Fox's testimony as true the claimant would be entitled to benefits, then the Court should remand for an award of benefit, "regardless of whether the ALJ might have articulated a justification for rejecting Dr. Fox's opinion." Id.
Similarly, in Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir.2004), the Ninth Circuit stated, "Because the ALJ failed to provide legally sufficient reasons for rejecting Benecke's testimony and her treating physician's opinions, we credit the evidence as true." The Ninth Circuit went on to say that once the evidence is credited at true, there would be no basis for the ALJ to conclude the Plaintiff could perform sedentary work. Id. at 596. And specifically the Ninth Circuit removed the option of the ALJ reconsidering the evidence stating, "Allowing the [ALJ] to decide the issue again would create an unfair `heads we win; tails let's play again' system of disability benefits adjudication." Id. at 595. Finally, the Ninth Circuit stated
In the face of this state of the law, the Government argues that "credit-as-true" as applied by the Ninth Circuit violates the Social Security Regulations and Supreme Court case law. Doc. 14, n. 5. In support of its position, Defendant points to examples of conflicting rules. For example, in INS v. Ventura, 537 U.S. 12, 16, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002), the Supreme Court held that when a court reverses an administrative determination, "the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation." Although Plaintiff argues this holding applies in only immigration cases (Doc. 17 at 19), the Ninth Circuit applies it in social security cases. See Benecke, 379 F.3d at 595.
Defendant goes on to cite Judge O'Scannlain's dissent in Vasquez. See Vasquez v. Astrue, 572 F.3d 586 (2009). In his dissent, Judge O'Scannlain addresses the Commissioner's petition for rehearing en banc. In reviewing the Commissioner's petition, Judge O'Scannlain recounts that credit-as-true with respect to a claimant's pain testimony is inconsistent with 42 U.S.C. § 423(d)(5)(A) (claimant's testimony alone cannot be basis for disability finding). 572 F.3d at 601-02. Judge O'Scannlain further notes that although Ventura requires remand for additional investigation or explanation except in rare cases, and accepting the Commissioner's statistics as true, the way the Ninth Circuit applies credit-as-true causes what should be the "rare" case to be somewhat common. Id. at 601-602. Finally, Judge O'Scannlain discusses without deciding that if the Ninth Circuit's credit-as-true rule is a de facto finding of disability, "then our circuit's precedent is badly misaligned with that of other circuits." Id. at 602.
Defendant further argues that this Court should reject "credit-as-true" based on Strauss and Parra. Specifically, Defendant argues under Strauss this Court cannot award disability benefits based on ALJ errors. 635 F.3d at 1137. Further, Defendant relies on Strauss's holding that an award of benefits is appropriate only when the claimant is actually disabled. Id. Defendant concludes that credit-as-true is effectively just a sanction against the ALJ, which leads to a finding of disability, even when there is conflicting evidence in the record; thus, such a rule conflicts with Strauss. Moreover, Defendant argues
As Judge O'Scannlain noted, "at least one panel has explicitly held that the crediting-as-true rule is not mandatory. Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir.2003)." Vasquez, 572 F.3d at 604 (O'Scannlain, J. dissenting). Conversely, he further notes that Lester, Harman, and Benecke all applied the bright line rule that improperly rejected testimony will be credited as true as a matter of law. Id. at 603-04. Judge O'Scannlain then concludes that although there are two lines of cases as to whether credit-as-true is discretionary, he cannot ignore the circuit law of Lester, Harman, and Benecke which make credit-as-true mandatory. Id. at 605 (O'Scannlain, J. dissenting). The majority in Vasquez, however, disagreed with Judge O'Scannlain about how to resolve this conflict. Specifically, the majority stated:
Id. at 593.
Thus, this Court must weigh Judge O'Scannlain's guidance that this Court must follow the binding circuit precedent of Lester, Harman, and Benecke, against Defendant's argument that such precedent is inconsistent with Supreme Court case law, the Code of Federal Regulations, other Circuit Courts of Appeals, and precedent of this Circuit (namely Connett and Strauss). Further complicating this analysis is Vasquez's acknowledgment that credit-as-true may be discretionary in this Circuit — a position neither party to this case advocates.
As both the majority and dissent in Vasquez note, even when the Court applies credit-as-true, that does not end the inquiry of whether to remand for an award of benefits or for further proceedings. Id. at 593-94, 603 ("The crediting-as-true rule is related to the decision on whether to remand for award of benefits; however, they are separate inquiries.") (O'Scannlain, J. dissenting). Thus, the framework to decide this case seems to be as follows. First, assuming credit-as-true is mandatory, and after applying credit-as-true, determine whether to remand for an award of benefits or for further proceedings. Id. at 593. Second, if the remand is for further proceedings, that ends the inquiry on appeal; however, if the remand is for
This framework, which the Court will apply in this case, effectively rejects Defendant's argument that this Court should refuse to apply credit-as-true, in any of its forms, because it is inconsistent with all other law regarding social security benefits. Defendant makes a powerful case in this regard. And the case becomes even more powerful by the 2011 decision in Strauss. 635 F.3d at 1135, 1138 ("The ALJ's errors are relevant only as they affect that analysis on the merits. A claimant is not entitled to benefits under the statute unless the claimant is, in fact, disabled, no matter how egregious the ALJ's errors may be."). However, Strauss clearly did not intend to overrule the cases on credit-as-true, whatever they may mean, because the Court went on to state, "Here, the district court did not undertake to determine whether Plaintiff is disabled within the meaning of the statute. The court did not credit as true any evidence that the ALJ had improperly excluded or discounted." Id. (emphasis added).
Thus, on one side, the Court agrees with Defendant that credit-as-true based solely on the ALJ's failure to articulate with specificity the reasons for a decision, even when such reasons exist in the record, appears to be a windfall to a potentially non-disabled person based on ALJ error. Harman, 211 F.3d at 1179 (applying credit-as-true and holding that the district court must remand for an award of benefit, "regardless of whether the ALJ might have articulated a justification for rejecting Dr. Fox's opinion."). On the other side, however, this District Court is bound by Ninth Circuit precedent, all of which seems to recognize some form of credit-as-true, and cannot simply declare it all overruled.
Using the three step process the Court articulated above, this Court must first determine, assuming credit-as-true is mandatory and after applying credit-as-true, whether to remand for an award of benefits or for further proceedings. As stated above, in this case, Defendant concedes that the ALJ did not give specific and legitimate reasons for not relying on the testimony of Dr. DeJesus, Dr. Lanier, Nurse Henderson, or Dr. Mason. The medical testimony of these four professionals is as follows.
Doc. 17 at 4-5.
Id. at 8.
Id. at 6-7.
Id. at 7-8.
Thus, at this point, this Court must decide whether, after "crediting-as-true" these opinions, the only conclusion is that Plaintiff is disabled. As Plaintiff's counsel notes, "At step four, the ALJ concluded [Plaintiff] could return to past relevant work as a park aide and teller ..., which the vocational expert testified were jobs performed at the light exertional level." Id. at 12. The ALJ reached this conclusion presumably having not relied on the above quoted doctor's opinions. However, the undersigned, not being able to ask the vocational expert questions, and not being the fact finder in social security cases, is in a difficult position to know whether to reverse the ALJ's conclusion that Plaintiff, "could perform `a range of less than light work as defined in 20 CFR 404.1545(a)(1).'" Id. at 12.
The Ninth Circuit is split on whether remanding for further vocational expert opinion, using the "credited" testimony is appropriate. Compare Harman, 211 F.3d at 1180 ("In cases where the testimony of the vocational expert failed to address a claimant's limitations as established by improperly discredited evidence, we consistently have remanded for further proceedings rather than payment of benefits.") with Benecke, 379 F.3d at 595-96 (acknowledging a lack of vocational expert testimony with the improperly discredited testimony, but holding, "Even without extensive [vocational expert] testimony, [Claimant's] entitlement to benefits is clear.").
Here, the testimony of Dr. Mason, if credited, appears to make it unlikely that Plaintiff can work. However, this Court is hesitant to reach this conclusion without confirmation from a vocational expert that a person with such limitation could not
As the Court discussed above, the Court presumed for purposes of this Court's analysis that applying credit-as-true was mandatory. See Vasquez, 572 F.3d at 593 (declining to decide whether credit-as-true was mandatory when there were further issues to resolve on remand). The next inquiry is whether this Court must direct the ALJ to likewise "credit-as-true" the testimony that Defendant concedes the ALJ did not properly consider.
Defendant argues, for all the reasons detailed above, that this Court cannot usurp the ALJ's fact finding role by directing the ALJ on remand to credit as true testimony that the ALJ has a variety of reasons to discredit.
So, the Court must determine whether credit-as-true is mandatory for the ALJ on remand for further proceedings or discretionary. Taking guidance from the concurrence in Vasquez, the Court finds whether to apply credit-as-true on remand is discretionary. Id. Thus, the Court must consider the factors for when to credit-as-true on remand, including whether Plaintiff is of an advanced age and whether Plaintiff has suffered a severe delay in the application process. Beck v. Astrue, 2012 WL 1378691, *5 (D.Ariz.2012) (citing cases finding three year and seven year delays not extraordinary in social security cases). The Court can also consider the need for the income. Benecke, 379 F.3d at 595.
In this case, Plaintiff recounts public policy reasons that this Court should apply credit-as-true and remand for an award of benefits. Doc. 17 at 27-28. However, Plaintiff makes no specific arguments about whether this Court should discretionarily apply credit-as-true on remand in this case. The Court notes that Plaintiff applied for benefits in January 2007, approximately five and one-half years ago.
For the foregoing reasons,
