Saunders v. Astrue

Filing 38

ORDER the case is remanded to Defendant for an award of benefits. The Clerk is directed to terminate this action. Signed by Judge David G Campbell on 8/25/11. (TLJ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Marvin A. Saunders,
Plaintiff,

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No. CV-08-595-PHX-DGC
ORDER

vs.
Michael J. Astrue, Commissioner of Social
Security,
Defendant.

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In a memorandum decision dated May 12, 2011, the Court of Appeals for the

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Ninth Circuit reversed the judgment affirming Defendant’s denial of social security

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benefits to Plaintiff, finding that the ALJ improperly discredited Plaintiff’s testimony and

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erred in determining his residual functional capacity. Doc. 31-1. The Court of Appeals

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remanded for further proceedings consistent with its disposition. Id. at 5. The parties, at

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the Court’s direction (Doc. 34), have filed memoranda addressing how the case should

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proceed on remand (Docs. 36, 37).

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Defendant asserts that the agency should revisit the credibility determination

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(Doc. 36 at 2), but presents no legal authority in support of this assertion. Because the

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ALJ failed to provide the requisite clear and convincing reasons for rejecting his

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symptom testimony, Plaintiff argues, that testimony is to be accepted as true and the case

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remanded for an award of benefits. Doc. 37 at 3-5. The Court agrees.

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This Circuit has held that an action should be remanded for an award of benefits

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where the ALJ has failed to provide legally sufficient reasons for rejecting evidence, no

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outstanding issue remains that must be resolved before a determination of disability can

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be made, and it is clear from the record that the ALJ would be required to find the

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claimant disabled were the rejected evidence credited as true. See, e.g., Varney v. Sec’y

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of HHS, 859 F.2d 1396, 1400 (9th Cir. 1988).

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After applying the credit-as-true rule to improperly discredited evidence, no

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outstanding issue remains to be resolved before determining that Plaintiff is entitled to

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benefits. The impartial vocational expert testified that Plaintiff’s symptom testimony, if

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accepted, would preclude all work. Doc. 9A, Tr. 360-61. Defendant does not disagree

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with this conclusion. Because it is clear that the ALJ would be required to find Plaintiff

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disabled, the Court will remand the case for an award of benefits. See Benecke v

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Barnhart, 379 F.3d 587, 593-95 (9th Cir. 2004); Orn v. Astrue, 495 F.3d 625, 640 (9th

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Cir. 2007).

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IT IS ORDERED:

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The case is remanded to Defendant for an award of benefits.

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2.

The Clerk is directed to terminate this action.

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Dated this 25th day of August, 2011.

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