Marilyn House v. Carolyn W. Colvin ( 2014 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUL 14 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
MARILYN T. HOUSE, No. 12-15028
Plaintiff - Appellant, D.C. No. 2:10-cv-02065-NVW
v.
MEMORANDUM*
CAROLYN W. COLVIN, Commissioner
of Social Security Administration,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Argued and Submitted March 10, 2014
San Francisco, California
Before: FARRIS, REINHARDT, and TASHIMA, Circuit Judges.
Marilyn House argues that the district court abused its discretion, Harman v.
Apfel, 211 F.3d 1172, 1174 (9th Cir. 2000), in remanding her claim to the ALJ for
further proceedings rather than for an award of benefits. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. It is not disputed that House suffered from fibromyalgia, lumbar spine
degenerative disc disease, osteoarthritis of the hands, and diverticulitis.1 The
question is whether these conditions were severe enough to prevent work and, if
so, when they grew severe enough to render House disabled.2
We agree with the district court’s conclusion that the ALJ failed to offer
legally sufficient reasons for discrediting Dr. Fairfax, House’s treating physician,
and for adopting the opinion of Dr. Disney, who did not examine House. We also
agree with the district court that the ALJ failed to offer legally sufficient reasons
for rejecting House’s testimony about her symptoms. Finally, we agree with the
district court’s conclusion that these errors were not harmless, as the ALJ
acknowledged that if Fairfax or House were credited, the ALJ would be required to
find that House was disabled, and then to calculate and award benefits.
2. As we explain in Garrison v. Colvin, the credit-as-true rule applies only
when three conditions are met: “(1) the record has been fully developed and further
administrative proceedings would serve no useful purpose; (2) the ALJ has failed
1
Because House died on December 16, 2010, this appeal concerns only
the closed-period disability insurance benefits that her surviving children claim on
her behalf. See 20 C.F.R. § 416.542(b); 20 C.F.R. §§ 404.350 to 404.368.
2
We resolve many of the arguments raised by the parties concerning
the credit-as-true rule in an opinion in Garrison v. Colvin, No. 12-15103, issued
concurrently herewith.
2
to provide legally sufficient reasons for rejecting evidence, whether claimant
testimony or medical opinion; and (3) if the improperly discredited evidence were
credited as true, the ALJ would be required to find the claimant disabled on
remand.” We further explain in Garrison that the third of these conditions
“incorporates what we have sometimes described as a distinct requirement of the
credit-as-true rule, namely that there are no outstanding issues that must be
resolved before a determination of disability can be made.”
3. Here, even if we were to credit as true both Fairfax’s opinion and
House’s testimony, an analysis that would require us to conclude that House was,
in fact, disabled, we could not determine from those credited-as-true opinions when
House became disabled.3 Social Security regulations make clear that determination
of a disability onset date is a complex and fact-specific inquiry. Titles II & XVI:
Onset of Disability, 1983-1991 Soc. Sec. Rep. Serv. 49 (S.S.A. 1983), 1983 WL
3
House’s treatment records from 2003 through 2005 reveal that her
symptoms of chronic fatigue and fibromyalgia-associated pain began in that period
and quickly increased in severity, but also show that these severe symptoms were
effectively treated by medication for at least part of the period. Only in March
2008 did Fairfax opine that House suffered moderately severe impairments, an
opinion that does not, on its face, purport to describe her level of impairment over
the prior several years, but rather only her impairments as of March 2008. Nor did
House, in her testimony, clarify exactly when her symptoms began or when they
reached a level of severity sufficient to qualify her as disabled. Finally, neither the
ALJ nor the vocational expert offered any opinion about when in time House’s
symptoms would have precluded her from work.
3
31249, at *2-3. And in cases like House’s, “the onset date is critical; it may affect
the period for which the individual can be paid and may even be determinative of
whether the individual is entitled to or eligible for any benefits.” Id. at *1.
This case is therefore controlled by Regennitter v. Comm’r of Soc. Sec.
Admin., in which we concluded that a claimant’s testimony and her doctor’s
opinion should have been credited, and that doing so would have required a finding
of disability and a remand for payment of benefits, but that the unresolved issue of
that claimant’s disability onset date prevented such a remand. See 166 F.3d 1294,
1300 (9th Cir. 1999); see also Luna v. Astrue, 623 F.3d 1032, 1035 (9th Cir. 2010)
(concluding that remand for an award of benefits under the credit-as-true rule was
unwarranted due to the “outstanding issue” of “when Luna’s disability began”).
Accordingly, here, as in Regennitter, we “remand this case to the Commissioner
for resolution of [the disability onset date issue], and for an ultimate disposition
consistent with this [determination].” See 166 F.3d at 1300.
AFFIRMED.
4