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Leon v. Berryhill

United States Court of Appeals, Ninth Circuit

November 7, 2017

Leopoldo N. Leon, Plaintiff-Appellant,
v.
Nancy A. Berryhill, Acting Commissioner Social Security, Defendant-Appellee.

          Submitted January 12, 2017 [*] San Francisco, California

         Appeal from the United States District Court for the District of Arizona David G. Campbell D.C. No. 2:14-cv-00093-DGC, District Judge, Presiding

          Eric G. Slepian, Phoenix, Arizona, for Plaintiff-Appellant.

          Erin Highland, Assistant Regional Counsel; David Morado, Regional Chief Counsel, Seattle Region X; Office of the General Counsel, Social Security Administration, Seattle, Washington; for Defendant-Appellee.

          Before: J. Clifford Wallace and Milan D. Smith, Jr., Circuit Judges, and Ralph R. Erickson, [**] District Judge.

          OPINION

         SUMMARY [***]

         Social Security

         The panel affirmed the district court's decision to remand for further administrative proceedings in a claimant's action seeking Title II disability insurance benefits under the Social Security Act; and clarified that remand to the administrative law judge ("ALJ") should be with an open record on the issue of whether the claimant's fatigue related to his capacity to undertake full time employment.

         The "credit-as-true rule" permits, but does not require, a direct award of benefits on review but only where the ALJ has not provided sufficient reasoning for rejecting testimony and there are no outstanding issues on which further proceedings in the administrative court would be useful. Under these circumstances, if a claimant's testimony is credited as true, an award of benefits may be appropriate. Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1101-02 (9th Cir. 2014).

         The panel held that the district court erred in its application of the three-step credit-as-true rule, outlined in Varney v. Secretary of Health & Human Services, 859 F.2d 1396, 1400-01 (9th Cir. 1988), because contrary to the district court's order, the Varney rule did not require the court to remand for an immediate award of benefits when the three Varney rule conditions were met.

          The panel held that the ALJ in this case failed to consider evidence related to claimant's claim of fatigue properly. The panel further held that the rare circumstances that result in a direct award of benefits on review were not present in this case. The panel held that on remand the district court should specify the scope of its remand. The panel remanded on an open record because there was serious doubt as to whether claimant was in fact disabled given that the district court upheld the ALJ's other findings. In addition, the panel directed that on remand claimant shall be permitted to cross-examine the Commissioner's medical consultants, but only to the extent such cross-examination concerned the issue of claimant's fatigue.

          OPINION

          WALLACE, Circuit Judge

         The credit-as-true analysis has evolved in our circuit over time, thus providing a challenge for application by the district court. The rule itself permits, but does not require, a direct award of benefits on review but only where the administrative law judge (ALJ) has not provided sufficient reasoning for rejecting testimony and there are no outstanding issues on which further proceedings in the administrative court would be useful. Then, and only under these circumstances, if a claimant's testimony is credited as true an award of benefits may be appropriate. Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1101-02 (9th Cir. 2014). Once the claimant's testimony on the severity of his symptoms is credited as true, see Varney v. Secretary of Health & Human Services., 859 F.2d 1396, 1400-01 (9th Cir. 1988), then the court should "determine whether the record, taken as a whole, leaves 'not the slightest uncertainty as to the outcome of [the] proceeding.'" Treichler, 775 F.3d at 1101, quoting NLRB v. Wyman-Gordon Co., 394 U.S. 759, 766 n. 6 (1969). An automatic award of benefits in a disability benefits case is ...


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