*1 large, produces also public to the known game video sophisticated technologically Andreas.
like San that, Undeterred, be- argues also ESS story- ignore are free to players cause they much time as want spend line and Pen, Pig Pen can be consid- Pig at the Game, lead- significant part ered a spend But fans can all ing to confusion. game at the hot innings nine of a baseball stand; hardly Dodger makes Sta- dog words, shop. In other dium a butcher’s strip to attend a virtual club the chance not selling point main unambiguously of the Game.
Ill con- foregoing, all of the we Considering Rockstar’s modification ESS’s clude that misleading and explicitly is not trademark Amendment. protected by thus the First ap- Amendment defense the First Since law claims as plies equally to ESS’s state claim, Act the district court to its Lanham the entire case on properly dismissed summary judgment. Rockstar’s motion AFFIRMED. VASQUEZ,
Priscilla Plaintiff-
Appellant, ASTRUE, Commissioner Michael J. Security, Defendant- of Social
Appellee. No. 06-16817. Appeals, States Court United Ninth Circuit. May 2008. Argued Submitted Filed Nov.
SELNA, Judge: District
OVERVIEW *3 Vasquez (“Vasquez”) appeals
Priscilla grant summary from the district court’s judgment for the Commissioner of Social (“the Commissioner”) Security upholding a Disability un- denial Insurance Benefits § seq. Supple- der U.S.C. 401 et Security mental Income benefits under 42 Vasquez § et claims that seq. U.S.C. improperly the Commissioner discounted symptom reporting, her failed to consider impairment, evidence of her severe mental improperly applied principles of res judicata. judgment
We vacate district court’s and remand to the Commissioner for a hearing Vasquez on the issue of whether entitled to benefits. Miller, Oakland, CA, Hunt for the
James FACTUAL BACKGROUND plaintiff-appellant. Disability Vasquez applied for Insurance Supplemental Security Benefits and In- Cusker, Special Assistant Unit- John C. in September alleging come benefits Attorney, ed States Office the General inability an to work since October 1995 Counsel, Administration, Security Social pain because of low back and other muscu- Francisco, CA, defendant-ap- San for the impairments. application loskeletal pellee. initially again on reconsid- was denied hearing, At the initial Adminis- eration. (“ALJ”) Stacy Judge trative Law Richard (“ALJ Vasquez Stacy”) also found that was application. not disabled and denied her Stacy The decision of ALJ discussed Vas- education, quez’s injuries back and limited F. Before: DIARMUID may Vasquez whether but did not discuss HAWKINS, Circuit O’SCANNLAIN cognitive impair- from have also suffered SELNA,* District Judges, and JAMES V. Vasquez ments because did not raise Judge. application. The Social Secu- issue her (“SSA”) rity Appeals Administration Coun- SELNA; Opinion by Judge Stacy’s of ALJ decision. cil denied review by Judge DALY Concurrence MICHAEL HAWKINS; subsequently appli- filed a new Judge Vasquez Dissent benefits, alleging inability cation for O’SCANNLAIN.
* fornia, Selna, by designation. sitting The Honorable James V. United States Judge the Central District of Cali- District 2001. After the
work since November whole.” “Substantial evidence means application, Commissioner denied her she more than a mere scintilla but less than a hearing. Vasquez’s ap- requested preponderance; an ALJ is such relevant evi specified that she suffered from plication dence as a might accept reasonable mind injury, ongoing problems due to back as adequate support conclusion.” An resulting cognitive impairments Shalala, well as drews v. learning problems. Cir.1995).
significant This Court “review[s] ad ministrative record as a whole” to deter (“ALJ Rogers Rogers,” ALJ Sandra or sup mine substantial evidence ALJ”) Vasquez “the found while *4 ports the ALJ’s decision. Id. “The ALJ is not her work perform past able to as responsible determining credibility, re housekeeper due to a “severe” back disor- solving testimony, conflicts medical and der, the function ca- she retained residual “[Wjhere resolving ambiguities.” Id. pacity “light perform exceptional work susceptible the evidence is to more than activity” and therefore was not disabled. interpretation,” one rational the ALJ’s de Although Rogers any ALJ did not make cision must be affirmed. Id. at 1039-40. explicit findings regarding Vasquez’s al- leged cognitive impairments, she discussed Credibility Vasquez’s Symptom Re- capacity the mental health and evidence porting presented, implicitly and seems to have Vasquez argues that impairments Rogers found that these were not ALJ impact properly “severe” did did not credit Vasquez’s symptom not her re and/or capacity. porting residual function when she found that Vasquez’s allegations “intensity, as to persis the In appealing this decision to the SSA tence, and limits symptoms effects of [her] Council, Appeals Vasquez presented addi- by were not well supported probative the psychological testing tional evidence of evidence and not wholly credible.” [were] (“Dr. Sanchez”) from Dr. Ubaldo Sanchez her of cognitive impair- bolster claims evaluating credibility In the of a ment. Appeals Council reviewed the testimony subjective claimant’s regarding findings ALJ’s as well as the additional pain, engage an ALJ must in a two-step evidence found that Dr. Sanchez’s re- Astrue, analysis. Lingenfelter v. 504 F.3d port any change did not warrant in the (9th Cir.2007). “First, 1035-36 the ALJ’s decision. The district court af- ALJ must determine whether the claimant granted firmed the ALJ’s decision it when presented objective has medical evidence summary judgment favor of the Com- underlying of an impairment which could missioner and declined to set aside the reasonably expected produce be ALJ’s denial of benefits. pain symptoms alleged.” or other Id. at (internal quotation citations and DISCUSSION omitted). marks The claimant is not re Standard of Review quired to show that impairment her “could reasonably expected to cause the sever We review the district court’s or ity of the symptom alleged; she has she affirming der denial of benefits de novo. Admin., only reasonably need show could Schneider v. Comm’r Soc. Sec. (9th Cir.2000). degree symptom.” have caused some may It Chater, (quoting “set aside the Id. Smolen v. Commissioner’s denial of (9th Cir.1996)). benefits findings when the ALJ’s If the claimant legal based on error or are not meets the first supported test there is no evi by substantial evidence in the malingering, record as dence of the ALJ can symptoms effects of his limiting [sic] about reject the claimant’s “spe- supported by proba- not well gives were symptoms she severity of wholly credi- for the tive and are not cific, convincing reasons” evidence clear and regard- complaints ble. The claimant’s rejection. severity and duration ing frequency, is in “chronic testified she Vasquez extremity pain of her back and lower to sit that it “hurts She stated pain.” objec- with the pain are consistent pain walking.” and “hurts chairs” generally evidence and are tive medical part of her she filled out questionnaire with the limitations [sic] consistent that she specified she application, benefits found. back, in her which “stabbing pain” feels toes, brought on legs and spreads to her comport with This statement does seeming to worsen when by movement by laid out the Court requirements walks, throughout “everyday she sits or at 1036. The ALJ Lingenfelter, 504 F.3d ongoing, unre- day.” Complaints of malingering, did not cite phy- recorded her pain lieved were also therefore, credibility find- her adverse *5 in med- incorporated Vasquez’s sicians and by “specific, ings may supported be ical reports. Id. Howev- convincing clear and reasons.” in er, specific findings no the ALJ made Vasquez “has a back finding
After that Vasquez’s her conclusion that support of impairment,” which is a severe disorder credible, the other than claims were in- acknowledged Vasquez’s the ALJ they vague allegation that were “not con- reasonably expected to juries “could objective medical evi- sistent with the symp- pain of the and other produce some dence.” added.) (Emphasis This alleged.” toms inqui- the ALJ’s prong the first of satisfied credibility finding, of support To lack credibility Vasquez’s the ry regarding required “point specific the ALJ was 504 F.3d at complaints. Lingenfelter, See in record which demonstrate facts 1035-36. in than she claims.” [Vasquez] pain is less (9th Shalala, 915, 12 F.3d however, Dodrill v. on, reject
The ALJ went Cir.1993). argument The Commissioner’s stating: Vasquez’s allegations, found that Claimant’s com- that the “ALJ considering all of the carefully after findings with the plaints were inconsistent evidence, documentary medical and Singh” and is not by Capen Drs. reported that, light of dis- undersigned finds por- The cited by the record. supported claimant’s asser- between the crepancies discuss the opinion ALJ’s does tion of the in the and information contained tions Singh, but the Capen Drs. and findings of examining treating and reports of the findings, or these ALJ did not discuss by the claim- physicians, allegations reject- when she specific and medical evidence intensity, persistence, ant as to the opinions of Lin- pletely ignored the medical Lingenfelter rejected Although Court in rejecting treating physicians, grounds primary for genfelter’s substantive two the ALJ's testimony, opinion suggests alleged pain the claimant’s expressly corroborated his who specificity required: of detail level incapable of and found him and limitations consensus, finding the ALJ cited to the In any work. agency physicians, the two doctors three state (emphasis in Lingenfelter, at 1037 504 F.3d Lingenfelter the California examined who Here, compa- original). was no level of there Board, and Compensation Appeals Workers’ analysis we could evaluate from which rable Ovadia, findings consis- each made Dr. who sufficiency credibility determina- sedentary capacity work. tent with a tion. however, explanation, the ALJ corn- Without Vasquez’s subjective complaints However, fusing ed to credit it. Id. the hold- pain.2 ing Varney II specifically limited to cases “where there are no outstanding is- argument The Commissioner’s that the sues must be resolved a proper before findings proper ALJ’s were under 20 disability made, determination can be 404.1529(c)(3) 416.929(c)(3)3 §§ C.F.R. where it clear from the administrative similarly regulations incorrect. Both required record that the ALJ would be deal with evidence the Commissioner award benefits if the pain claimant’s excess in determining should consider how a testimony were credited.” Id at 1401. symptoms may capac- claimant’s affect her ity guidelines; to function under the nei- II, Since split authority has findings required ther describe what developed over whether the rule is manda- reject before ALJ can a claimant’s alle- tory discretionary or this Circuit. Com- gations any event, disabling pain.4 Chater, pare, e.g., Lester v. does not appear complied the ALJ (9th Cir.1995) (holding that when an requirements either with the laid out improperly rejects ALJ a claimant’s testi- Court, Lingenfelter, see mony regarding limitations, his and the 1036; Dodrill 12 F.3d at or its own claimant would be testimony disabled his 404.1529(c)(3) regulations, §§ see credited, were must be cred- 416.929(c)(3), in assessing Vasquez’s sub- law); ited as a matter of with Connett v. jective complaints disabling pain. Barnhart, Cir.2003) (discussing the conflicting Circuit’s case judicial
The appropriate response *6 holding law and that the doctrine is not in situations where the ALJ fails to give an mandatory because the court has “some justification adequate rejecting a claim flexibility in applying crediting as true pain testimony ant’s was first discussed in (internal theory” quotation marks omit- Varney Secretary v. Health and Human ted)). It necessary is not for us to resolve II), 1396, (Varney Services time, however, because, the conflict at 1398-99, Cir.1988). this There, 1401 we Lester, Varney unlike II or here there are adopted the Eleventh Circuit’s credit-as- rule, outstanding true issues that must holding that the be resolved Commissioner accept, law, proper disability must as a before a matter of a claim determination subjective pain testimony ant’s if can be Varney the ALJ made.5 See II at 859 F.2d fails to articulate sufficient reasons for re- (declining 1401 to address whether Capen’s findings 2. subjective symptoms, Moreover Dr. would be an her and list some rele- inadequate discounting Vasquez’s basis for may assessing vant factors that be included in symptom reporting given specifi- that the ALJ impact symptoms. of those Neither sec- cally Capen's opinion found that "Dr. is not findings required tion states what are before supported by the overall evidence of the rec- may subjective an ALJ discredit a claimant’s significant weight ord” and not "afforded in reports pain. (ER 26.) Imaking process.” the decision! 5.This is the distinction which the dissent fails regulations 3. References all are to Title 20 perceive suggesting an en banc Regulations, of the up- Code of Federal last panel may properly resolve this case. That changes dated in 2006. No relevant were certainly applied would be true we any regulations made to between the time the findings credit-as-true rule because no further Vasquez’s update ALJ heard case and the last required on remand. United States v. regulations. to the 1347, (9th Cir.1992) Hardesty, 977 F.2d 1348 404.1529(c)(3) (en banc) curiam). 416.929(c)(3) (per 4. Sections But that is not case, merely "dodge” state that the ALJ will and it is consider no to avoid a choice presented by regarding among the claimant require. rules which this case does not
1107 specify By requiring the ALJ in 1398. adopted rule should credit-as-true a claimant at discrediting proceed- “any factors for further a remand where cases rule ensures that disability deter- opportunity,” first required before ings is Lester, assessed, made); carefully 81 F.3d at testimony is pain can be mination rule is unnecessary duplication (holding prevent credit-as-true helps the claimant only where mandatory, process. but the administrative testimony were if his be disabled reasons, Ham- we follow For all these credited). rule in the credit-as-true applying mock remand, the ALJ is this instance. On recognized has This Court Vasquez’s symptom may justify accept instructed to which are other factors there rule, determining even whether credit-as-true as true application of the rule would application to benefits. where she is entitled of bene payment in the immediate result Severely Im- Vasquez was Evidence Bowen, F.2d 498 v. In Hammock fits. paired (9th Cir.1989), the limited compared we process five-step sequential In the rule in of the credit-as-true application disability applicant’s to evaluate an used in the Eleventh II with the rule status, determining step two consists pain Circuit, claimant’s which credits the “medically severe a claimant has to artic the ALJ fails testimony whenever impair combination impairment or at 503 doing so. Id. reasons ulate its Yuckert, v. 482 U.S. ments.” Bowen Bowen, (citing Hale 140-41, L.Ed.2d 119 S.Ct. (11th Cir.1987)). adopting gen Without (1987). the ALJ’s Vasquez argues that, claimant rule, because we found eral impairment was im of no mental finding already expe had age advanced was of by substantial supported and not proper delay application, in her a severe rienced should that the ALJ We hold evidence. the credit-as-true appropriate apply to con opportunity have been afforded applied in that case. Id. at We rule *7 be generated sider additional evidence for a remanded though even we the rule Appeals and the the ALJ’s tween decision benefits determination of further pur for that hearing, and remand Council due, in so instructed doing and were pose. symptom tes the claimant’s ALJ to credit at at 503-04. confirms least timony. Id. The medical evidence impairment. degree cognitive some of in case. present facts Similar (“Dr. Lum, M.D. February Owen for benefits application filed her Vasquez Lum”) Vasquez and evaluated interviewed is 58 present, At she in 2002. October Dr. Lum administering any tests. without Further, Varney noted years old. we having “adjustment Vasquez as diagnosed II, rule is of the credit-as-true purpose moods” and assessed with mixed disorder reaching a con- discourage ALJs from Functioning Assessment Global first, and status a claimant’s clusion about (“GAF”) number indi- This Level justify by ignoring attempting to then symptoms of mild and assessment cates an suggests the record functioning.6 Assessing difficulty II, F.2d at some opposite an result. Association, Diagnos- sure, Psychiatric 2.) (Dissent orderly 6. American n. To be at 1115 Manual Mental Disor- tic and Statistical area law in this development of the Circuit’s (2000) ders, Revision Text Fourth Edition (see id. banc review might benefit from en IV-TR”), ("DSM (describing the p. GAF 1117), compels it. not because this case but 60 and noting a level between and scale capacity, Mood,” her functional Dr. Lum NOS,” wrote “Learning Disorder and a Yasquez to perform simple is able and GAF of 60. This GAF score indicates tasks, repetitive and in the absence of symptoms” “moderate or moderate diffi- major psychiatric problems, perform could “social, culty in occupational, or school detailed tasks. He stated that she “is able functioning.” IV-TR, p. DSM 34. She accept supervisors instructions from and specifically noted that Vasquez appeared interact with and the public,” coworker[s] concentration, “to be able to maintain per- further, that she could “work aon sistence, pace,” was able to “relate consistent basis” and a regular “attend well in the interview and would be able to situation[,] secondary work to the ab- appropriately interact supervisors with major cognitive senee[] deterioration.” job co-workers setting.” She interview,
The month after Dr. found her perform Lum’s able to “simple repeti- Yasquez by tasks,” was interviewed and tested tive but perform “unable to de- (“Dr. Kollath, psychologist Ute Ph.D. Kol- tailed and complex tasks.” lath”). Dr. Kollath administered WMS- The ALJ findings referenced the of Drs. III, WAIS-III and Bender-Gestalt exami- Lum decision, and Kollath in her though reported nations. Vasquez’s IQ She specific she made no findings regarding 62, placing score was a “mildly her Vasquez’s mental health. In assessing the mentally range”; however, retarded Dr. objective impairment evidence of obtained Kollath further stated that appears “this from Dr. Kollath’s testing, the ALJ noted be an underestimate of her intellectual lev- Dr. Kollath’s observations that the scores el of functioning and variable motivation likely were “underestimates of her true might account for this.” Her im- clinical abilities.” pression Vasquez was that placed in “at After the ALJ deny- issued her decision least the borderline range.” Her Global benefits, ing Vasquez was seen Dr. (“GMI”) Impairment Measure of score was Sanchez for further psychological evalua- than less which demonstrates a memo- tion testing. Vasquez argues that this ry “impaired however, in the range”; Dr. evidence, additional which she submitted reported Kollath that this “appears score Council, Appeals clearly demon- to be an underestimate memory of her strates that she did suffer from a mental functioning” because she was “able to re- impairment during peri- the relevant time some, call detailed autobiographical infor- od.7 mation.” Dr. Sanchez *8 Vasquez’s
Dr. reviewed Kollath records stated that her overall im- and pression administered following was “of an examina- individual who could well tions: cognitive scale; have WAIS-III adult impairment,” intelligence but stat- 3(WRAT3) ed that Vasquez’s memory scale; WMS-III engagement “limited to- wide wards the testing process range test; Reyes Items; interfered with a achievement full assessment.” Dr. Kollath and a diagnosed mental status examination. His re- “Adjustment an Disorder with Depressed port noted that put she forth “full effort” patient 70 indicates a symp- with "some mild 7. Because this evidence was submitted to and social, Council, difficulty occupa- Appeals toms” or "some considered and is tional, record, part of the administrative functioning,” or school this Court but who is may reaching consider it in well, its final decision "generally functioning pretty has [and] though even the ALJ did not have the benefit meaningful interpersonal some relation- during of this applica information the initial ships”). Schweiker, hearing. Bilby tion 1985). 718 n. 2 Cir. whether she in- able to evaluation, no determine demonstrated during the of an 8-hour Reyes the stress able tolerate during malingering dication basis. on a consistent day, a credible 40-hour week test, “appeared as and 15 Items claimant.” that Vas- report suggests Dr. Sanchez’s impair- Vas- cognitive indicates that from report may suffer quez
Dr. Sanchez’s is a which IQ reported score Vas- Full Scale Dr. Kollath quez’s ments. While functioning currently that that the she noted “indicates score at she quez’s IQ of meas- range mentally retarded in the be an underestimate “appear[ed] score that, further states It intelligence.” ured functioning.” level her intellectual fall within border- Vasquez ap- of her scores all stated that while She further indi- range mentally retarded line and who could well be an “individual peared to verbal intelli- general cating limited “limited impairment,” her cognitive have numeric thinking; conceptual gence; process testing towards the engagement auditory recol- immediate manipulation; with a full assessment.” interfered judg- lection; knowledge; social general reported Dr. Sanchez comparison, awareness, sense, reality ment, common claimant” and was a “credible Vasquez situation; limited practical judgment high- IQ slightly Vasquez’s found between essential ability to differentiate 65) (a within but still Full Scale score er details; capaci- limited non-essential measured range of “mentally retarded attention, effort, concen- ty for sustained intelligence.” efficiency ... and mental tration credited, Dr. statements If Sanchez’s memory examination on the Her scores finding of mental certainly support a could average below “significantly demonstrated plainly states report His impairment. Dr. Sanchez assessed memory skills.” average below Vasquez “significantly has grade at a third Vasquez could read skills,” indicating and test scores memory level, and level, grade spell at fourth sense, ca- judgment, common limited social grade a first level. perform arithmetic effort, attention pacity sustained Disor- “Major Depressive diagnosed He Further, as- efficiency. his GAF mental Disorder,” “Reading Disor- der,” “Pain symptoms” or “serious indicates sessment Expression,” der,” of Written “Disorder social, occupation, impairment a “serious Disorder,” “Borderline “Mathematics IV-TR, functioning.” See DSM or school with an overall Functioning,” Intellectual p. 34. score indicates of 49. The GAF GAF that Dr. San- argues The Commissioner from suffered that Sanchez assessment contrary to the evi- findings chez’s “impair- a serious symptoms” or “serious (e.g., the testi- to the ALJ presented dence func- social, or occupation, school ment Kollath), and Lum Drs. mony of IV-TR, p. 34. tioning.” DSM Howev- therefore, not be credited. should while stated that Dr. Sanchez further had remanded er, Appeals Council difficulty not have Vasquez “would *9 review, Dr. San- additional the case socially “[s]he being appropriate, have enhanced findings would chez’s concentrating, difficulty in have moderate pro- to the ALJ available information of a pace with the keeping up focusing contradictory, additional, rather than vided given[her] preoccu- environment working Vasquez’s condition. her current level pain and pation with hesi- some expressed ALJ Though the functioning.” He stated emotional Kol- credibility of Dr. tancy regarding being perform able to “viewed as she was above, Dr. explained findings, as tasks,” not lath’s but repetitive simple and 1110 at a diagnosis.
Sanchez arrived similar sented that clearly the proper indicate out- Dr. findings Because Sanchez’s are based steps come of four and five of the disability tests, objective on clinical and buttressed determination reason, evaluation. For this by Vasquez appeared his statement that to the Court cannot find Vasquez disabled claimant, they be a credible could be suffi- and order an payment immediate of bene- cient to a impairment. show mental See fits. See Harman Apfel, 1172, v. 211 F.3d Bowen, Magallanes v. 751 (9th Cir.2000) 1178-79 (allowing an imme- (9th Cir.1989) Heckler, (quoting Miller v. diate when, award of benefits directed (9th Cir.1985) (where 849 among things, other it is clear from the “nontreating physician’s opinion rests on record that the ALJ would be required to objective tests, clinical it must be viewed find the claimant disabled the evidence is evidence”)). Moreover, as substantial credited). Rather, these, in cases such as the extent Drs. Kollath Sanchez’s tes- “where the of the vocational ex- timony supports finding of mental im- pert has failed to address a claimant’s pairment that would not sup- have been limitations as established improperly ported by Dr. testimony, Lum’s the Court evidence,” discredited this Circuit has may conclude that the evidence is not actu- “consistently ... remanded for further ally contradictory, Dr. because Lum did proceedings rather than payment of bene- perform any clinical tests on fits.” Id. which Drs. Kollath and Sanchez based opinions. their Accordingly, we remand to allow the ALJ to consider Dr. Sanchez’s reports in whole, When viewed as a the medical determining Vasquez suffers reports suggest from Vasquez may suffer a mental impairment, cognitive from a and to impairment. consider how Because the ALJ did not these limitations have access to Dr. affect her Sanchez’s residual func- reports otherwise, in deciding she tioning capacity also did ability perform oth- not account for mental Vasquez’s impair- er work steps at four and five of the ments in determining her residual func- disability sequence. determination tioning capacity step four of the disabili- Res Judicata
ty § determination. See 404.1523 (noting principle judicata “[T]he of res where has a claimant combination of should not impairments, be rigidly applied “the impact combined administra impairments Chater, will be tive throughout proceedings.” considered Lester v. disability process”); determination Bowen, F.3d at (citing Gregory § (noting 404.1545 that where a claimant Cir.1988)). Normally, an has more than impairment, one the SSA findings ALJ’s that a claimant is not dis them, will consider all of even those that abled “creates a presumption that severe, are not in determining the claim- claimant continued able work after ants residual functioning capacity). Miller, date.” Id. at (quoting 848). However, F.2d at presumption party Neither has presented argu- apply does not ment “where regarding Vasquez’s the claimant impair- how raises issue, ments would a new affect a determination such of her as the existence of an residual functioning capacity impairment under previous considered guidelines.8 Thus, there are no pre- application.” facts *10 Vasquez
8. argue all, did not that she meets a if at if she is determined to be disabled at disability "listing” impairment mental on for step sequence. five of the appeal, benefits, only so that she is entitled to
mi However, for the reasons F.3d at Lester, found the Court that, cred- above, after judi- we believe res outlined apply not could the Commissioner taking testimony and pain decision Vasquez’s ALJ iting to an earlier principles cata mental eligibility of her the evidence determining a claimant’s account into in (1) a alleged mental a deter- should make the claimant the impairment, where ALJ appli his earlier not raised in function- residual impairment Vasquez’s to mination as (2) the of after date turned 50 and cation to benefits entitlement ing capacity the thus entered decision the earlier further The ALJ is instance. the first category age” advanced “approaching judica- of principles res that the instructed regulations. applicable the defined case, and in this applicable ta are exactly in this case facts at 828. deci- therefore, Stacy’s previous that ALJ Vasquez did in that Lester to parallel any degree of defer- is not entitled to sion impairment her mental issue of the raise as to whether decision the ultimate ence in ALJ before application during her of an award benefits. entitled to Vasquez is her during the issue did raise Stacy, but Rogers. before ALJ application CONCLUSION after turned 50 Vasquez Additionally, remand petition Vasquez’s grant We en- Stacy’s decision of ALJ the date to Com- to remand instructions with advanced “closely approaching tered the of determination a further missioner Thus, im- Rogers ALJ age” category. due. benefits are Rog- ALJ judicata. res applied properly Costs AND REMANDED. VACATED “weight gave that she noted explicitly ers Appellant. to appeal on Stacy” [ALJ] of determination prior determination, and because her reaching HAWKINS, Circuit DALY MICHAEL of provide unable Vasquez was concurring: Judge, circumstances,” princi- applied “changed decision. How- judicata res her of ples INTRODUCTION I. new issue a ever, Vasquez raised because Stacy and entered the so- application ALJ of not before case involves This cate- age” an Ad- advanced “closely rule. Wdien approaching called “credit-as-true” Rogers ALJ (“ALJ”) an improper gory, was makes Judge Law ministrative non- continuing a apply presumption respect finding with credibility adverse Vasquez’s deciding second disability Security when testimony in a Social a witness’s at id. 827.9 See application. find- specific make case, “must or she he Hammock decision.” justifying that ings legal er- ALJ has committed Where an Cir.1989) Bowen, F.2d the Commis- may set aside ror, this Court Hu- Health and Sec’y Schneider, Varney v. (citing of benefits. denial sioner’s proceeding, a later impairment in ALJ severe argues because 9. The Commissioner explained the Court impair- As argument is circular. mental Roger’s “no severe found pre- "changed Lester, ment," to do to applicant has Vasquez establish an could not all period. during relevant raise a judicata application of res circumstances” clude irrelevant, as noted because argument is id. This See proceeding. issue in later new above, presumption defeats course, would, say- claimant point in little There raising is- nondisability by a new continuing can raising a new issue ing a claimant Lester, application. See sue in later continuing non- presumption of escape the the Commissioner's the extent 827. To has al- claimant only after the disability, but judicata is barred implies argument that res impairment is severe. ready proven the new, applicant establishes when *11 I), (Varney man Servs. 846 F.2d 584 and the will case be remanded with in- (9th Cir.), on reh’g, F.2d 1396 structions to grant benefits. Id. modified (9th II) (Varney Cir.1988); Cotton v. Bow A panel later concluded that “the ‘credit- en, (9th Cir.1986)). 799 F.2d ing as true’ doctrine is mandatory [not] According rule, to the credit-as-true when the Ninth Circuit.” Barnhart, Connett v. provide specific, ALJ fails to articulable (9th Cir.2003). Survey- reasons to support an credibility adverse ing cases, conflicting Connett determined finding, this court should ‘“not remand that there was “no other way to reconcile” solely to allow the ALJ specific to make those eases than to hold that “[i]nstead of findings regarding testimony. Rath being rule, a mandatory we have some er, [it should] take that to be flexibility in applying the ‘crediting as true’ ” 15117 established as true.’ (quoting theory.” Id. at 876. Accordingly, II, 1401). Varney 859 F.2d at court judgment declined to enter instruct- ing the ALJ to award benefits and instead
I concur with the entirety Judge Sel- remanded the case for purpose the sole opinion, na’s including application of the determining “whether Connett’s testimony credit-as-true rule in this case. In the should be credited as true.” Id. view, however, dissent’s there is an inter- nal conflict among Ninth case Circuit law While Varney II and Connett appear do that makes resolution of the credit-as-true to be in conflict over the applicability of issue impossible here. I separately write the credit-as-true rule where there is no to clarify why application of the credit-as- other reason to remand the case to the true rule is appropriate why this case ALJ, does case not and should not does present an opportunity for en provide an opportunity to resolve that dis- banc review of the conflict identified pute en banc. Varney II expressly “re- dissent. judgment serve[d] as to whether to follow [credit-as-true] rule cases which a
II. DISCUSSION remand required for other reasons.” Id. This first court articulated the credit-as- There is no conflict over the credit-as-true II, true rule in Varney at 1396. rule applied to cases require re- There we stated that when an ALJ has not mand for other reasons. Because this case provided specific reasons for disbelieving a requires regardless remand application claimant’s testimony, a credibility hearing rule, credit-as-true it does not impli- “insufficient, itself, to warrant further cate conflict between Varney II and proceedings.” Id. at 1400. Thus Connett.
[i]n cases where there are no outstand- We first addressed the question left ing issues that must be resolved before a open by Varney II in Bowen, Hammock proper disability determination can be Cir.1989), where we made, where it is clear from the considered a case in which pro- further administrative record that the ALJ ceedings other than a credibility determi- required to award benefits nation necessary were before benefits the claimant’s excess pain testimony granted. There, could be we “extended] credited, were we will solely remand II to cover the present case be- to allow the ALJ to specific make find- cause delay experienced by Hammock ings regarding that testimony. has been severe and because of Ham- Instead, Id. at 1401. the testimony will be mock’s age.” advanced Id. at 503. We “established as true” law, as a matter of therefore “accepted] as a matter of law”
1113 typically benefits elderly and their monly claimant’s truth point. beside delayed therefore is Id. proceedings. further for remanded also Hammock that argues dissent Harman, Lester, and Benecke Nor do true be That Connett. conflicts with concluding otherwise. a basis for provide binding ex- announced only if Hammock for Lester stands argues that The dissent rule IT s credit-as-true Varney of tension that “[w]here proposition the broad an ALJ had in which all cases to adequate provide fails to Commissioner disbelieving for reasons specific provided we credit rejecting[testimony], for reasons ” regardless testimony, claimant’s law,’ 81 a matter of [testimony] ‘as that a credibili- than other proceedings further for of the need regardless F.3d at Ham- required. were ty determination Dissent at 1115— on other issues. remand so interpreted cannot be not and has mock expan- such Setting aside whether broadly. has that statement interpretation of sive a conflict in claim of its support To to the not relevant merit, simply it any “dis- that because case, dissent asserts There, apply- after that of case. outcome in- affect older disproportionately abilities rule, pan- the Lester credit-as-true ing the limit Hammock’s dividuals,” any effort to of payment for benefits” “remand[ed] el case is “unavail- of the facts that holding to neces- proceedings were no other because Chater, 81 v. Lester It also cites ing.” Thus, assuming even at 834. sary. (9th Cir.1995), Apfel, v. Harman F.3d 821 Hammock concluded that Lester arguendo (9th Cir.2000), and Benecke 1172 board, that Varney II across extended (9th Cir.2004), Barnhart, F.3d 587 379 v. the result bearing on had no conclusion court of this panels that later argue to non-binding dic- is therefore that case broadly ap- to Hammock interpreted have Lawyers, Clergy, Coalition ta. See of for cases, of the need regardless all ply to Bush, Professors n. 2. at & Neither Dissent remand. Cir.2002) way no that is “in (analysis water. holds arguments these holding” [which] is “dicta to relevant of this panel[s] [future] not bind plain language does First, says Hammock court”). apply rule should that the credit-as-true delay case because present
only in “the
support
even less
provides
Harman
been severe
has
by Hammock
experienced
II
been
has
that
the conclusion
age.”
Hammock’s advanced
and because
There,
like this one.
all
cases
extended
added).
(emphasis
Noth-
at 503
F.2d
the circumstances
addressed
expressly
we
in-
the court
indicated
ing in Hammock
credited
should be
“evidence
under which
be-
applicable
a rule
establish
tended to
di-
award
immediate
and an
of benefits
that
context
limited factual
yond the
(em-
Harman,
rected.”
empirical
The dissent’s
case.
particular
added).
testi-
concluded that
We
phasis
motivating
the factors
observation
only when
as true
mony should be credited
Se-
to most Social
are common
Hammock
legally
(1)
provide
has
the ALJ
failed
court’s
does
render
curity cases
rejecting
evi-
such
reasons
It
sufficient
categorical.
logically
decision
(2)
outstanding is-
dence,
no
there are
will
panels
future
likely makes more
be resolved before
that must
the cred-
sues
apply
discretion
exercise their
made,
disability can
necessary
determination
rule when remand
it-as-true
(3)
case.)
from
record
it is clear
(This
one such
reasons.
for other
find the
required
would be
the ALJ
com-
Security claimants
That Social
claimant disabled were such
Benecke,
fits.
Id. (quoting Smolen v. III. CONCLUSION (9th Cir.1996)). conformity In Hammock, According to we are free II, with to Varney we determined that (but exercise our discretion required) not met, these three elements were “then re- apply the credit-as-true rule in this case. mand for determination and payment of This conclusion conflicts with neither Var- benefits [would regardless be] warranted ney II nor Connett. Whatever the of whether the ALJ merits might have articulated of the claim that the justification en banc court for rejecting should [the testimo- resolve the conflict But, between ny].” Varney II concluded, we application of Connett, simply the this case rule was does not appropriate provide partic- that an opportunity doing ular case because so. expert vocational had not addressed the posed limitations by O’SCANNLAIN Circuit Judge, sought conditions to be by established dissenting: application of the rule. Id. at 1180. Ac- Because cordingly, I believe appropriate “[t]he that remedy ... this Circuit’s precedents reconciled, [was] remand this case cannot be to the I ALJ.” Id. must Thus if respectfully Harman demonstrates dissent from anything, part it that of the is that 1106-07) court’s opinion Hammock judicial (op. at established dis- that dis- (or cretion to cusses the apply crediting-as-true apply) the credit- rule. In my view, as-true rule in cases where only remand is nec- issue can resolved essary for other Certainly reasons. court en it can- banc. I do agree with the court’s not be read to mean treatment what the dissent of the remaining issues, includ- claims—that we apply must ing the credit-as- its conclusion that the Administrative true rule in cases where remand is Law Judge neces- improperly rejected Vasquez’s sary for other reasons. testimony and that the case should be remanded for consideration of Vasquez’s
Benecke is also readily distinguishable. ability perform other during dissent work steps is correct to note that four and of the panel disability Benecke five “applied] determina- erediting-as- process. tion true rule then wheth- discuss[ed] er there were ‘outstanding issues that I
must be resolved before a determination of
When a panel is faced with an
disability
irreconcil-
[could] be made....”’
Dissent
able conflict in the
circuit,
law of
Benecke,
1115 n. 1
(quoting
379 F.3d at
required
594).
to make a sua sponte
It
call
for en
best,
be dubious at
howev-
banc
er,
review.
In Atonio
interpret
v. Wards Cove
Benecke’s misconstruction
Co.,
Packing
Inc.,
the en
Harman test as a
banc court
binding
held
extension
the three-judge panel
II to
facing
cases in which
conflict-
remand is
ing
still
precedent
circuit
necessary.
event,
But in
again
relying
erred
on
assuming arguendo
one
line of the
such an
court’s
interpre-
authority on the
merit,
tation had
it still
basis that
expressed
would be non-
“it
‘correct
view’
binding
or,
dicta since the
court
alternatively,
Benecke
“con-
because it was the deci-
”
clude^]
there are no outstanding is-
sion
‘first
line.’
sues that
(9th
must be
(en
resolved
Cir.1987)
banc).
before a deter-
Rather, the court
mination of disability can be made” and
stated that “the appropriate mechanism
remanded with
grant
instructions to
bene-
for resolving an irreconcilable
conflict
Bowen,
Cir.1988)
(9th
v.
Hale
(quoting
with
panel
A
decision.
an en bane
faced
(11th Cir.1987)). The
1007, 1012
F.2d
re-
en banc
call
must
such
conflict
to the deci-
rule is related
crediting-as-true
added).
(emphases
1478-79
Id. at
view.”
for award of
to remand
sion on
this hold-
affirmed
later
court
The en bane
however,
in-
separate
benefits;
they
Hardesty,
States
ing United
quires.1
banc)
Cir.1992) (en
(per
1347, 1348
specifical-
curiam).
point
court
correct to
out
Hardesty, the
The court is
*14
initially limited
are
was
crediting-as-true
“where there
rule
the view
ly rejected
outstanding
no
“where there
authority,
panel
to cases
of
lines
opposing
two
prop
before a
resolved
review,
that must be
issues
en banc
calling for
may, without
made,
can be
disability determination
er
‘successfully
has
which
the rule
follow
the
clear from
administra
it is
and where
long
for
circuit
as
law
the
posed
”
would be re
ALJ
record that
the
tive
at 1348
F.2d
on.’
977
relied
enough to be
if the claimant’s
to award benefits
quired
Health &
v. Sec.
(overruling Greenhow
of
”
....
testimony were credited
pain
excess
(9th
633,
Servs.,
636
863 F.2d
Human
However,
in Ham
the court
at 1401.
Cir.1988)).
(9th
Bowen,
F.2d 498
Cir.
v.
879
mock
rule, hold
1989),
Varney II
II
the
extended
delay experi
“the
where
ing
applicable
A
and
severe
has been
by [claimant]
enced
ir-
an
rule creates
crediting-as-true
The
Id. at
age.”2
advanced
[her]
because
be-
testimony
presumption
rebutable
503.
re-
judge and
law
fore an administrative
B
is
adequate reason
by him for no
jected
to articulate
Secretary
crediting-as-
fails
the
the
true.
extend
“[I]f
decisions
Later
...
the
to
testimo-
As stated
refusing
credit
all
for
true
to
cases.
reasons
rule
(9th
821,
law,
Chater,
81 F.3d
Secretary,
a matter
v.
as
court Lester
then the
ny,
fails
Cir.1995),
the Commissioner
true.”
testimony
“[w]here
as
accepted
has
rejecting
adequate reasons
provide
to
and Human
Health
v.
Sec. of
examining
treating or
opinion of
1396,
the
1398
II),
F.2d
(Varney
859
Servs.
applied
it is of cases
821,
(9th
crediting-as-true
as
Chater,
is
the
834
F.3d
v.
1. See Lester
Nguyen v.
applied. See
"similar[]”);
it is
Cir.1995)
in which
Harman
(inquiries are
Cir.1996) (seven-
(9th
Chater,
1172,
(9th
1117-1147 apply, rules there which can choose court address the Connett cited cases do not dis- doctrine, that we perception however. least the crediting-as-true the the acknowledged Litigants Furthermore, under law. justice the court equal pense lan compulsory “seemingly without perhaps of existence be will concerned— Id. court. of this opinions in other guage” get claimants will sympathetic cause—that to remand with decided court The Connett rule, crediting-as-true the benefit there crediting-as-true “[b]ecause out are de- claimants sympathetic while less Con- to whether findings as insufficient the rule because nied the benefit credited be testimony should nett’s discretionary that the rule panel decides Id. true.” court and This apply. and should appeals it hears from which courts district D that would subject litigation will be pro “the argued court The Connett would en banc court unnecessary for reconsideration remanding priety ap- rule crediting-as-true clarify when implicitly credibility determinations course, that could re- any step Of plies. in Bunnell en banc by our court approved unnecessary litigation amount of duce Cir. Sullivan, speed up the help Circuit 1991).” However, en banc court worthy most litigants other process —a rule. crediting-as-true discussed never *16 goal indeed. helpful particularly Thus, is not Bunnell Further rule. scope of the defining the ei- authority ignore lack we Because Lester, Harman, more, the decisions cases, I must crediting-as-true ther line of after the Bun- years all came Benecke at- the court’s from dissent respectfully court’s the Connett While decision. nell the morass through to wade tempt discretionary is crediting-as-true view has be- jurisprudence crediting-as-true our Bunnell, from may support draw pend- proceeding stay I come. would court’s banc en compelled hardly en court. by an ing action banc I not believe Accordingly, do reasoning. prece circuit binding ignore can that we merely sug of a case which
dent because is discretion crediting-as-true gests that Lester, Harman, and Indeed, even ary. Bunnell, we with inconsistent Benecke three-judge panel authority as lack the decisions. those to overturn
Ill en banc resolves sitting court Until the how the credit- clarifies this conflict in this applied rule is to be ing-as-true to con- have circuit, panels will three-judge competing lines among the pick tinue to Atonio and Har- violation precedent, judges and adminis- court District desty. equally confused. judges will be law trative panels when enough; but bad Confusion hearing. being present at a benefit without matters technical medical