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Laborin v. Berryhill

United States Court of Appeals, Ninth Circuit

August 16, 2017

Bernard Laborin, Plaintiff-Appellant,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant-Appellee.

          Argued and Submitted March 14, 2017 San Francisco, California

         Appeal from the United States District Court No. 2:13-cv-02167-MHB for the District of Arizona Michelle H. Burns, Magistrate Judge, Presiding

          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.

          Before: Stephen S. Trott, Kim McLane Wardlaw, and Ronald M. Gould, Circuit Judges.

         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.

         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.

          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 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 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 ...


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