Allison Varela v. Andrew Saul ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 28 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALLISON MAE VARELA, No. 19-16785
Plaintiff-Appellant, D.C. No. 2:18-cv-01335-JAT
v.
MEMORANDUM*
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
James A. Teilborg, District Judge, Presiding
Submitted September 17, 2020**
San Francisco, California
Before: SCHROEDER, W. FLETCHER, and HUNSAKER, Circuit Judges.
Dissent by Judge HUNSAKER
Allison Varela appeals from the Social Security Administration’s decision
denying Disability Insurance Benefits and Supplemental Security Income, which
was reversed and remanded for rehearing by the district court. We have jurisdiction
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
under 28 U.S.C. § 1291, and we reverse the district court and remand for payment
of benefits.
Here, the parties do not dispute that the Administrative Law Judge (ALJ) erred
by improperly rejecting Varela’s treating physician’s opinion. The district court
applied the correct standard in reviewing the ALJ’s rejection of Varela’s treating
physician because two non-examining physicians contradicted the treating
physician’s opinion. See Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020).
Accordingly, the ALJ was required to provide “specific and legitimate reasons”
supported by substantial evidence to reject it. Id. The ALJ rejected the treating
physician’s narcolepsy diagnosis concluding that it is a “psychological condition[]”
the physician was not qualified to diagnose and that it was inconsistent with other
medical evidence in the record. This was wrong on both counts. The treating
physician, a neurologist, was qualified to diagnose narcolepsy and his diagnosis
relied on, and was consistent with, objective medical evidence.
Based on this error, the district court remanded for rehearing. We review the
decision to remand for a rehearing rather than an award of benefits for an abuse of
discretion. Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir.
2014). We hold that the district court abused its discretion because, crediting
Dr. Anderson’s opinion as true, there is no doubt that Varela was disabled. Further
administrative proceedings are not necessary where the ALJ improperly rejected
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evidence, the record has been fully developed, and further proceedings would not be
useful. Id. at 1100–01. And given the ALJ’s significant factual mistake, this case
should not be remanded for more proceedings. See Benecke v. Barnhart, 379 F.3d
587, 595 (9th Cir. 2004) (quoting Moisa v. Barnhart, 367 F.3d 882, 887 (9th Cir.
2004)) (“Allowing the Commissioner to decide the issue again would create an
unfair ‘heads we win; tails, let’s play again’ system of disability benefits
adjudication.”). We reverse the decision of the district court and remand with
instructions to remand to the Commissioner of Social Security for an award of
benefits.
Costs are awarded to Varela.
REVERSED AND REMANDED FOR PAYMENT OF BENEFITS.
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FILED
Varela v. Saul, No. 19-16785 SEP 28 2020
MOLLY C. DWYER, CLERK
HUNSAKER, Circuit Judge, dissenting: U.S. COURT OF APPEALS
I agree that the Administrative Law Judge erroneously rejected the diagnosis
of Allison Varela’s treating physician, but I disagree this case should be remanded
for an immediate award of benefits. We remand for an award of benefits under the
credit-as-true rule only in “rare circumstances.” Treichler v. Comm’r of Soc., Sec.
Admin., 775 F.3d 1090, 1099 (9th Cir.2014) (citing 42 U.S.C. § 405(g)). We have
instructed that a reviewing court may credit rejected testimony as true and remand
for an award of benefits only if: “(1) the ALJ failed to provide legally sufficient
reasons for rejecting the evidence; (2) there are no outstanding issues that must be
resolved before a determination of disability can be made; and (3) it is clear from
the record that the ALJ would be required to find the claimant disabled were such
evidence credited.” Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). “Where
there is conflicting evidence, and not all essential factual issues have been resolved,
a remand for an award of benefits is inappropriate.” Treichler, 775 F.3d at 1101.
Here, the record is not “free from conflicts and ambiguities” as to leave no
doubt regarding Varela’s disability. Dominguez v. Colvin, 808 F.3d 403, 407 (9th
Cir. 2015). The treating physician’s opinion at issue has internal inconsistencies and
the two non-examining physicians rendered their opinions without the benefit of the
treating physician’s diagnosis. On the current record, there are unanswered questions
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regarding the extent of Varela’s disability and the district court did not abuse its
discretion in determining that “further administrative proceedings would be useful.”
Treichler, 775 F.3d at 1101. Accordingly, I would affirm the district court and
remand to the ALJ for rehearing.
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