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Burrell v. Colvin

United States Court of Appeals, Ninth Circuit

December 31, 2014

ADRIAN BURRELL, Plaintiff-Appellant,
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant-Appellee

Argued June 11, 2014.

Resubmitted, San Francisco, California December 19, 2014.

Page 1134

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


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 it had " serious doubt" as to whether Burrell was, in fact, disabled pursuant to Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014), the district court shall remand the case to the ALJ for further proceedings, and the ALJ shall not be required to credit-as-true any evidence.

Judge Schroeder dissented. Judge Schroeder agreed with the majority that substantial evidence supported neither the ALJ's discrediting of Burrell's testimony nor his rejection of the treating physician's medical assessment, but she would remand for an award of benefits. Judge Schroeder would hold that the three prerequisites of Garrison are met, would credit-as-true the discredited evidence, and would not find that there were serious doubts as to whether Burrell was disabled within the meaning of the Act.

Eric G. Slepian (argued), Slepian Law Office, Phoenix, Arizona, for Plaintiff-Appellant.

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

Before: Mary M. Schroeder, Susan P. Graber, and Jay S. Bybee, Circuit Judges. Opinion by Judge Graber; Dissent by Judge Schroeder.


Page 1135

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.


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

Page 1136

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.


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 ...

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