Sarmento v. Social Security Commissioner

Filing 28

Judge Rya W. Zobel: ORDER entered denying 24 Motion to Amend; denying 26 Motion to Amend (Urso, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO. 10-11724-RWZ

MARIA SARMENTO
v.
MICHAEL J. ASTRUE,
Commissioner of the Social Security Administration
ORDER
August 13, 2012
ZOBEL, D.J.
The Commissioner seeks amendment of the May 1, 2012 judgment ordering
remand of plaintiff’s Social Security Disability Insurance claim solely for the calculation
of benefits. The motion is denied.
Nearly six years have elapsed since plaintiff’s initial claim; another remand
would only add to this delay. The ALJ did not make a credibility finding supported by
substantial evidence despite two opportunities to do so. Given the ALJ’s other findings,
this case hinged on credibility alone. Remand for calculation of benefits is appropriate
under these limited circumstances. Rohrberg v. Apfel, 26 F.Supp.2d 303, 312 (D. Mass.
2011) (awarding benefits where plaintiff “applied for disability benefits almost five years
ago. Further delay would only lengthen what has proven a ‘painfully slow process.’”)
(internal citations omitted). Larlee v. Astrue, 694 F.Supp.2d 80, 87(D. Mass. 2010) (“To
remand for a third hearing would only further prolong “what has proven a painfully slow
process. Administrative deference does not entitle the Commissioner to endless

opportunities to get it right.”) Seavey v. Barnhart, 276 F.3d 1,13 (1st Cir. 2001)
(“Secretary is not entitled to adjudicate a case ad infinitum until [she] correctly applies
the proper legal standard and gathers evidence to support [her] conclusion”)(citing
Miller v. Chater, 99 F.3d 972, 978 (10th Cir.1996)).
Moreover, although the First Circuit has not had occasion to consider the
“credit-as-true rule,” adopted by other circuits, the rule provides that “where there are
no outstanding issues that must be resolved before a proper disability determination
can be made, and where it is clear from the administrative record that the ALJ would be
required to award benefits if the claimant's excess pain testimony were credited... the
Commissioner must accept, as a matter of law, a claimant's subjective pain testimony if
the ALJ fails to articulate sufficient reasons for refusing to credit it.” Vasquez v. Astrue,
572 F.3d 586, 593 (9th Cir. 2009). See also Hale v. Bowen, 831 F.2d 1007, 1012 (11th
Cir.1987). This rule discourages needless procedural delay, duplication of
administrative hearings, and encourages ALJs to make thorough credibility
determinations in the first instance.
While it is unclear whether operation of this rule is available here, it
nonetheless, along with the excessive administrative delay, informs the use of the
court’s equitable powers described in Larlee and Seavey to remand without further
hearing under the circumstances herein. The motion to remand for further
consideration of the merits is denied. The matter is remanded for calculation and
award of benefits only.

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August 13, 2012
DATE

/s/Rya W. Zobel
RYA W. ZOBEL
UNITED STATES DISTRICT JUDGE

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