Adrian Burrell v. Carolyn W. Colvin

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ADRIAN BURRELL, No. 12-16673 Plaintiff-Appellant, D.C. No. v. 2:11-cv-00749-

SRB

CAROLYN W. COLVIN,

Commissioner of Social Security, Defendant-Appellee. OPINION

Appeal from the United States District Court for the District of Arizona Susan R. Bolton, District Judge, Presiding

Argued June 11, 2014 Resubmitted December 19, 2014 San Francisco, California

Filed December 31, 2014

Before: Mary M. Schroeder, Susan P. Graber, and Jay S. Bybee, Circuit Judges.

Opinion by Judge Graber; Dissent by Judge Schroeder SUMMARY*

Social Security

The panel reversed the district court’s decision affirming the Social Security Commissioner’s denial of Adrian Burrell’s application for disability insurance benefits pursuant to the Social Security Act, and remanded the case for further proceedings.

The panel held that there was not substantial evidence to support the administrative law judge’s (“ALJ”) rejection of Burrell’s testimony, or the ALJ’s rejection of the medical assessment by Burrell’s treating physician. The panel also held that because…

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…

dissenting:

I agree with the majority that substantial evidence supports neither the ALJ’s discrediting of Claimant’s testimony nor his rejection of treating physician Dr. Riley’s medical assessment. Yet the majority refuses to credit that evidence as true.

Our court has laid down three prerequisites for crediting such evidence as true: first, that the record is fully developed, and remanding for further proceedings would not be useful; second, that the ALJ failed to give legally sufficient reasons for rejecting the evidence; and third, that the discredited evidence would require the ALJ to find the claimant disabled if credited as true. Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir.2014). The majority assumes, without deciding, that these prerequisites are satisfied in. this case. I would hold they are satisfied.

The record is fully developed, including the testimony of a vocational expert. No further proceedings are required where a vocational expert answers questions about a hypothetical person with a claimant’s alleged limitations. See id. at 1021 n. 28. The reasons given by the ALJ for rejecting the evidence are not sufficient, as the majority holds. In my view, if that…