Bernard Laborin v. Nancy Berryhill

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BERNARD LABORIN, No. 15-15776
Plaintiff-Appellant,
D.C. No.
v. 2:13-cv-02167-
MHB
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the District of Arizona
Michelle H. Burns, Magistrate Judge, Presiding
Argued and Submitted March 14, 2017
San Francisco, California
Filed August 16, 2017
Before: Stephen S. Trott, Kim McLane Wardlaw,
and Ronald M. Gould, Circuit Judges.
Opinion by Judge Gould
2 LABORIN V. BERRYHILL
SUMMARY *
Social Security
The panel reversed the district court’s judgment
affirming the administrative law judge’s (“ALJ”) denial of
Bernard Laborin’s applications for disability benefits and
supplemental security income under Titles II and XVI of the
Social Security Act.
The ALJ did not credit Laborin’s testimony regarding the
intensity, persistence, and limiting effects of his symptoms
to the extent that testimony was “inconsistent with the above
residual functional capacity assessment [(RFC)].”
The panel held that this boilerplate language encouraged
an inaccurate assessment of a claimant’s credibility and also
permitted determination of RFCs that were inconsistent with
truly credible testimony. The panel further held that the
approach taken by the ALJ was inconsistent with the Social
Security Act and should not be used in disability decisions.
The panel held that the ALJ’s analysis was also illogical:
because the claimant’s symptom testimony must be taken
into account when the ALJ assesses the claimant’s RFC, it
cannot be discredited because it is inconsistent with that
RFC. The panel noted that inclusion of the flawed
boilerplate language, was not by itself, reversible error and
could be harmless.
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
LABORIN V. BERRYHILL 3
Because the ALJ did not give clear and convincing
reasons for rejecting Laborin’s symptom testimony, and for
the reasons provided in a concurrently filed memorandum
disposition, the panel reversed and remanded.
COUNSEL
Eric G. Slepian (argued), Phoenix, Arizona, for Plaintiff-
Appellant.
Brian Baak (argued), Special Assistant United States
Attorney; John Jay Lee, Regional Chief Counsel; Office of
the General Counsel, Social Security Administration,
Denver, Colorado; for Defendant-Appellee.
OPINION
GOULD, Circuit Judge:
Bernard Laborin appeals the district court’s judgment
affirming an administrative law judge’s (ALJ) denial of his
applications for disability benefits and supplemental security
income under Title II and Title XVI of the Social Security
Act, 42 U.S.C. §§ 301–1397mm. The ALJ did not credit
Laborin’s testimony regarding the intensity, persistence, and
limiting effects of his symptoms to the extent that testimony
was “inconsistent with the above residual functional
capacity assessment [(RFC)].” 1 This boilerplate statement
1
The ALJ’s statement reads in full:
After careful consideration of the evidence, the
undersigned finds that the claimant’s medically
4 LABORIN V. BERRYHILL
encourages an inaccurate assessment of a claimant’s
credibility and also permits determination of RFCs that are
inconsistent with truly credible testimony. The approach
taken by the ALJ was inconsistent with the Social Security
Act and should not be used in disability decisions. Because
the ALJ also did not give clear and convincing reasons for
rejecting Laborin’s symptom testimony, and for the reasons
provided in the concurrently filed memorandum disposition,
we reverse and remand. 2
The “RFC is an administrative assessment of the extent
to which an individual’s medically determinable
determinable impairments could reasonably be
expected to cause the alleged symptoms; however, the
claimant’s statements concerning the intensity,
persistence and limiting effects of these symptoms are
not credited to the extent they are inconsistent with the
above residual functional capacity.
The ALJ found that Laborin had the residual functional capacity to:
frequently lift and carry 20 pounds occasionally and
10 pounds frequently; stand and/or walk with normal
breaks about four out of eight hours; sit with normal
breaks about six out of eight hours; never push or pull
with the right lower extremity; never climb ladders,
ropes, or scaffolds; occasionally crawl; and frequently
climb ramps or stairs. The claimant must avoid
concentrated exposure to fumes, odors, dust, gases,
poor ventilation, and unprotected heights. The
claimant must avoid exposure to moving machinery.
He needs to sit/stand at will.
2
We address Laborin’s other challenges to the ALJ’s decision—
including additional challenges to the ALJ’s credibility determination—
in the concurrently filed memorandum disposition.
LABORIN V. BERRYHILL 5
impairment(s), including any related symptoms, such as
pain, may cause physical or mental limitations or restrictions
that may affect his or her capacity to do work-related
physical and mental activities.” SSR 96-8p, 61 Fed. Reg.
34474, 34475 (July 2, 1996). 3 It “is the most [a claimant]
can still do despite [his or her] limitations.” 20 C.F.R.
§ 416.945(a)(1).
When an individual does not have a severe medical
impairment that meets or equals one of the listed
impairments, the scope of the RFC plays a crucial role in the
ALJ’s determination of whether an individual is disabled and
entitled to benefits under the Social Security Act. See
generally id. § 416.920(a)(4) (describing the five-step
sequential evaluation process); SSR 96-8p, 61 Fed. Reg.
34474 (explaining the RFC). The ALJ assesses a claimant’s
RFC between steps three and four of the five-step sequential
evaluation process used for disability determinations. See
20 C.F.R. § 416.920(a)(4). The RFC is first used at step four
to determine whether an individual can do relevant past
work. Id. § 416.920(a)(4)(iv). If the claimant cannot do
relevant past work, the RFC is then used again at step five—
along with the claimant’s age, education, and work
experience—to determine whether the claimant “can make
an adjustment to other work.” Id. § 416.920(a)(4)(iv)–(v).
If the claimant can do other work, the claimant is found to
be not disabled. See id. § 416.920(a)(v).
3
“[Social Security Rulings] reflect the official interpretation of the
[Social Security Administration] and are entitled to ‘some deference’ as
long as they are consistent with the Social Security Act and regulations.”
Massachi v. Astrue, 486 F.3d 1149, 1152 n.6 (9th Cir. 2007) (alterations
in original) (quoting Avenetti v. Barnhart, 456 F.3d 1122, 1124 (9th Cir.
2006)).
6 LABORIN V. BERRYHILL
The ALJ assesses a claimant’s RFC “based on all the
relevant evidence in [the] case record.” Id. § 416.945(a)(1).
The ALJ must consider both the medical evidence and
“descriptions and observations of [the claimant’s]
limitations from [the claimant’s] impairment(s), including
limitations that result from [the claimant’s] symptoms, such
as pain, provided by” the claimant, family, friends, and other
people. Id. § 416.945(a)(3). The RFC assessment must
“[c]ontain a thorough discussion and analysis of the
objective medical and other evidence, including the
individual’s complaints of pain and other symptoms and the
adjudicator’s personal observations, if appropriate.” SSR
96-8p, 61 Fed. Reg. at 34478 (emphasis added). In other
words, the ALJ must take “the claimant’s subjective
experiences of pain” into account when determining the
RFC. Garrison v. Colvin, 759 F.3d 995, 1011 (9th Cir.
2014); see also Lingenfelter v. Astrue, 504 F.3d 1028, 1035
(9th Cir. 2007) (“[T]he ALJ failed to provide clear and
convincing reasons for finding [the claimant’s] alleged pain
and symptoms not credible, and therefore was required to
include these limitations in his assessment of [the
claimant’s] RFC.”). 4
4
We do not suggest that, in assessing the RFC, the ALJ must always
accept the claimant’s statements as to the severity and limiting effects of
his or her symptoms as true. The claimant’s “credibility . . . cannot be
ignored in determining [the claimant’s] ability to work ([the claimant’s]
residual functional capacity, in [Social Security Administration]-
speak).” Bjornson v. Astrue, 671 F.3d 640, 646 (7th Cir. 2012). The
ALJ must evaluate the credibility of the claimant’s symptom testimony
so that the ALJ can take that testimony—insofar as it is credible—into
account as part of the RFC assessment. See Lingenfelter, 504 F.3d at
1035. The ALJ cannot, however, properly evaluate the claimant’s
credibility based on a predetermined RFC.
LABORIN V. BERRYHILL 7
Despite this clear directive from the regulations, Social
Security Rulings, and our case law, which all require ALJs
to take the claimant’s symptom testimony into account in
determining the RFC, ALJs with frequency include the
boilerplate language discrediting the claimant’s symptom
testimony because it is “inconsistent with” the RFC in their
disability determinations. See, e.g., Treichler v. Comm’r of
Soc. Sec. Admin., 775 F.3d 1090, 1103 (9th Cir. 2014). By
doing so, the ALJ indicates that he or she did not properly
“incorporate a claimant’s testimony regarding subjective
symptoms and pain into the RFC finding, as [he or she] is
required to do.” Trevizo v. Berryhill, 862 F.3d 987, 1000 n.6
(9th Cir. 2017); see also Mascio v. Colvin, 780 F.3d 632, 639
(4th Cir. 2015) (holding that this boilerplate language
conflicts with the regulations and rulings). This practice
“inverts the responsibility of an ALJ, which is first to
determine the medical impairments of a claimant based on
the record and the claimant’s credible symptom testimony
and only then to determine the claimant’s RFC.” Trevizo,
862 F.3d at 1000 n.6.
Not only does the ALJ err by discrediting symptom
testimony to the extent it is inconsistent with an RFC, but the
ALJ’s analysis is also illogical. Because the claimant’s
symptom testimony must be taken into account when the
ALJ assesses the claimant’s RFC, it cannot be discredited
because it is inconsistent with that RFC. By discrediting a
claimant’s “statements concerning the intensity, persistence
and limiting effects of [the claimant’s] symptoms . . . to the
extent they are inconsistent with the” RFC, the ALJ puts the
cart before the horse.
We are not the first circuit to recognize that this
boilerplate language is problematic. Both the Seventh and
the Fourth Circuits have concluded that it is incorrect as a
8 LABORIN V. BERRYHILL
matter of law. See Filus v. Astrue, 694 F.3d 863, 868 (7th
Cir. 2012) (noting that finding a claimant’s symptom
testimony is not credible to the extent it is inconsistent with
an RFC “puts the cart before the horse, in the sense that the
determination of capacity must be based on the evidence,
including the claimant’s testimony, rather than forcing the
testimony into a foregone conclusion”); Bjornson v. Astrue,
671 F.3d 640, 645 (7th Cir. 2012) (noting that this
boilerplate language “gets things backwards”); Mascio,
780 F.3d at 639 (concluding the boilerplate language “‘gets
things backwards’ by implying ‘that ability to work is
determined first and is then used to determine the claimant’s
credibility’” (quoting Bjornson, 671 F.3d at 645)). This
improper procedure both inverts and subverts the way an
RFC must be determined relying on credible evidence,
including credible testimony.
Like our sister circuits, we have stated that inclusion of
this flawed boilerplate language is not, by itself, reversible
error and can be harmless. See Trevizo, 862 F.3d at 1000
n.6; Mascio, 780 F.3d at 639; Filus, 694 F.3d at 868. It does
not, however, add anything to the ALJ’s determination of
either the RFC or the claimant’s credibility. We cannot infer
from this language “that the ALJ rejected [the claimant’s]
testimony to the extent it conflicted with [the] medical
evidence.” Treichler, 775 F.3d at 1103. To discredit a
claimant’s symptom testimony when the claimant has
provided objective medical evidence of the impairments
which might reasonably produce the symptoms or pain
alleged and there is no evidence of malingering, the ALJ
must give “specific, clear, and convincing reasons for
rejecting” the testimony by identifying “which testimony
[the ALJ] found not credible” and explaining “which
evidence contradicted that testimony.” Brown-Hunter v.
LABORIN V. BERRYHILL 9
Colvin, 806 F.3d 487, 489, 494 (9th Cir. 2015). This
boilerplate language does neither.
As we elaborate in the concurrently filed memorandum
disposition, here the ALJ did not give clear and convincing
reasons for rejecting Laborin’s testimony regarding the
severity of his pain. The ALJ’s inclusion of the boilerplate
statement does not save her decision.
REVERSED and REMANDED.