KAREN S. GARRISON, Plaintiff-Appellant, v. CAROLYN W. COLVIN, Commissioner of Social Security Administration, Defendant-Appellee.
No. 12-15103
D.C. No. 2:10-cv-02484-JWS
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Filed July 14, 2014
Appeal from the United States District Court for the District of Arizona; John W. Sedwick, District Judge, Presiding
Argued and Submitted March 10, 2014—San Francisco, California
Before: Jerome Farris, Stephen Reinhardt, and A. Wallace Tashima, Circuit Judges. Opinion by Judge Reinhardt
Social Security
The panel reversed the district court‘s order remanding the case to the Commissioner of Social Security Administration for further proceedings, and instead remanded with instructions to the administrative law judge to calculate and award Social Security disability benefits to the claimant.
The panel held that the administrative law judge (“ALJ”) erred in assessing the medical opinion evidence. The panel also held that the ALJ erred by failing to offer specific, clear, and convincing reasons for discrediting the claimant‘s symptom testimony concerning her physical and mental impairments.
The panel outlined the three-part credit-as-true standard, each part of which must be satisfied in order for a court to remand to an ALJ with instructions to calculate and award benefits: (1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand. The panel held that the district court abused its discretion by remanding for further proceedings where the credit-as-true rule was satisfied and the record afforded no reason to believe that the claimant was
COUNSEL
Mark Caldwell, Caldwell & Ober, Phoenix, Arizona, for Plaintiff-Appellant.
Laura H. Holland (argued), Special Assistant United States Attorney, Social Security Administration, Office of the General Counsel, Denver, Colorado; John S. Leonardo, United States Attorney, Michael A. Johns, Assistant United States Attorney, United States Attorneys’ Office, Phoenix, Arizona; John Jay Lee (of counsel), Regional Chief Counsel, Region VIII, Social Security Administration, Office of the General Counsel, Denver, Colorado, for Defendant-Appellee.
OPINION
REINHARDT, Circuit Judge:
Karen Garrison appeals from a denial of Social Security benefits, arguing that the Administrative Law Judge (“ALJ”) erred in rejecting her symptom testimony and in assigning little weight to the opinions of her treating medical caretakers. In a decision that the Commissioner does not contest, the district court determined that the ALJ erred in assessing the medical opinion evidence and remanded the case for further proceedings. We conclude that the ALJ also erred in discrediting Garrison‘s symptom testimony, and that the district court abused its discretion in remanding for further proceedings. Applying our settled “credit-as-true”
BACKGROUND
I
Karen Garrison was born in 1970. In an application for disability insurance benefits filed on September 7, 2007, she stated that she has been disabled since April 17, 2007 due to a combination of physical and mental impairments. Before her stated disability onset date, she worked as a bus driver, bus monitor, cashier, pizza cook, convenience store clerk, and customer service manager.
After Garrison‘s application for benefits was denied on January 4, 2008, and after her request for reconsideration was denied on March 12, 2008, she requested a hearing before an ALJ. At the hearing, which was held on July 14, 2009, Garrison presented extensive medical records to support her claim of disability and testified at length about how her impairments affect her daily life. The ALJ also heard testimony from a vocational expert (“VE”). The evidence presented at the hearing covered the period from April 2007 to June 2009, and comprehensively addressed Garrison‘s physical and mental health.
A. Physical Impairments
Since 2006, as shown by the records of Dr. Christopher Labban, her primary care provider, Garrison has suffered from a variety of physical ailments—including chronic neck and back pain, degenerative joint disease, sciatica, obesity,
When Wang first evaluated Garrison, he noted that she reported severe neck and back pain that radiated outward and caused other symptoms; the neck pain radiated into her upper arms and caused numbness and tingling, and the lower back pain caused a burning sensation that radiated into her legs. He observed that prolonged standing aggravated her pain, as did turning her head. In his assessment, Wang noted that MRI results confirmed that Garrison suffered from spinal disc protrusions and determined that her pain symptoms involved “radicular features.” He also remarked that Garrison had
Wang further noted in September 2007 that Garrison reported experiencing what she described as “seizures,” in which her mind went blank, her body seized up, she started shaking uncontrollably, and she heard voices yelling at her. Wang theorized that she was suffering from panic attacks.
Garrison‘s symptoms grew worse between September and December 2007. Wang‘s treatment notes indicate that Garrison reported having experienced another “seizure” while at the grocery store, causing her to seize up, feel like most of her body was burning, slur her speech, and collapse. Garrison also stated that, at night, she felt sustained twitching in her body, “like electronic current zaps through her head.” More significant, her burning and aching neck pain continued to radiate into her shoulders at a 10/10 level of intensity; Garrison stated that “she has electric jolts going up to her head when she moves her neck” and that her arms kept falling asleep. Garrison‘s lower back pain, too, rated 10/10 in intensity, and Wang observed that it was made worse by prolonged standing. Noting that Garrison was very drowsy from all of the pain medication she was taking—medication that did not effectively control her pain—Wang cleared Garrison for epidural shots. He also modified the medications she was taking, which at the time included Tegretol, Neurontin, and Baclofen.
In January 2008, consistent with his treatment records and those of Labban over the prior months, Wang noted that Garrison‘s symptoms of “seizures” and unbearable pain persisted unabated. Her neck and back pain still rated at 10/10 in intensity, still radiated into her arms, shoulders, and legs, and still caused a mix of burning, numbness, and tingling. Garrison also reported intense fatigue due to insomnia and frequent twitching at night, as well as ongoing “seizures” that disrupted her daily activities. One such “seizure,” in late January 2008, caused her to shake on the left side of her body and was accompanied by a spell of confusion and stuttering. These symptoms, in turn, were exacerbated by drowsiness from her medications, episodes of weakness, and a persistence in decreased muscle strength in her left arm and lower extremities.
Summarizing his assessment of Garrison‘s symptoms on February 20, 2008, Wang stated as follows in a “Pain Functional Capacity (PFC) Questionnaire” that posed a series of questions followed by check-boxes: Garrison did have pain; this pain was “moderately severe (pain seriously affects ability to function)”; and this pain was reasonably expected to result from objective clinical or diagnostic findings documented in Garrison‘s medical records. Wang noted that Garrison‘s pain was precipitated by changing weather, movement, overuse, stress, and cold, and was “frequently” severe enough to interfere with Garrison‘s attention and concentration. Wang added that, due to her pain symptoms, Garrison “frequently” experienced deficiencies of concentration, persistence or pace that resulted in a failure to complete tasks in a timely manner.
In March 2008, Dr. Eric Feldman, to whom Garrison had been sent for a consultation, remarked that Garrison had been experiencing neck and back pain “for the past year,” and that she had suffered “a fairly severe pain throughout the neck, scapular area, thoracic and lumbar spine.” Feldman observed that neither physical therapy nor a cervical epidural steroid
Over the next two months, Garrison‘s pain improved somewhat. She had a hysterectomy, some of her other symptoms abated, and a transforaminal epidural steroid injection temporarily reduced her back and leg pain. However, she continued to experience symptoms of radiculopathy, including sharp pain in her neck, arms, and shoulders.
Wang‘s records show that, by June 2008, Garrison, who had stopped a few of her medications, was again experiencing numbness, tingling, and sharp pain in her hands, arms, and neck. She had also experienced a “seizure” on June 15, 2008. Wang instructed Garrison to resume some of her medications and ordered her not to drive for at least three months. A few weeks later, Garrison once again experienced a “seizure,” and reported to Wang that, despite the Percocet that she was taking every six hours, she was still in pain. By August 2008, Garrison was again experiencing intense pain in her neck and right shoulder—and received only partial, short-lived relief from the Percocet.
In September 2008, Feldman performed another epidural steroid shot, but this time the shot led to only a few days of
After a short-lived respite from the back pain (though not other symptoms) in December 2008—the result of another epidural shot—Garrison again reported severe back pain in January 2009. Feldman‘s records reveal that, by this point, Percocet had become less effective, providing partial relief for only a few hours per dose. Garrison‘s neck continued “bothering her significantly,” and the pain from her neck started radiating into her occipital region. Garrison was started on new pain medications, including MS Contin, but continued to feel numbness and tingling in her arms and legs. These symptoms, as well as severe headaches, persisted into February 2009.
In April 2009, Wang noted that Garrison‘s headaches had finally ceased, but also observed that she had experienced an increase in her back pain and that this pain was still radiating down her legs. Garrison told Wang that it felt like her feet “are on fire,” adding that she could not walk or stand for a long time and that her feet were tender to the touch. Wang opined that Garrison‘s “pain is affecting her ability to function.”
B. Mental Health Issues
Throughout the relevant time period, Garrison struggled with a variety of diagnosed mental impairments, including bipolar disorder, anxiety, bouts of insomnia, auditory and visual hallucinations, and paranoia. Her treating medical caretakers also came to view her “seizures” (sometimes called “pseudo-seizures” in her treatment records) as the result of psychiatric issues.
In September 2007, Garrison visited Nurse Practitioner Susan Anderson for the first time. Anderson, who would become Garrison‘s primary psychiatric care giver, noted that Garrison suffered from insomnia, anxiety, depressive symptoms, nightmares, and flashbacks. Anderson diagnosed post-traumatic stress disorder and possible bipolar disorder. She also recorded a Global Assessment of Function (GAF) score of 50.4 Later that month, Anderson noted that Garrison
Two months later, in November 2007, Dr. Wayne General examined Garrison at the behest of a state agency. He concluded that her full scale IQ was 77, placing her in the 6th percentile, and observed that “Karen is currently functioning in the range of borderline intelligence.” General then noted that Garrison‘s “overall short-term memory is in the borderline range” and that her “concentration is in the low average range.” When subjected to further tests, Garrison performed in “the lower average range” on simple tasks and “very poorly” on more complex tasks requiring concentration.
Axis I: 296.52 Bipolar I Disorder, Most Recent Episode Depressed, Moderate
995.50 Victim of Physical or Sexual Abuse as a Child
995.81 Victim of Physical or Sexual Abuse as an Adult
309.81 Posttraumatic Stress Disorder, Acute, Chronic, Delayed Onset
304.80 Polysubstance Dependence, Alcohol, Amphetamines, Cannabis and Cocaine in Full, Sustained Remission by self-report
Axis II: V62.89 Borderline Intellectual Functioning, by examination
Axis III: Overweight, joint disease (neck and back) and arthritis, by referral history; migraine cephalgia by self-report
General concluded that Garrison‘s “prognosis for returning to work is currently poor, as she had difficulty maintaining concentration and manifested a borderline short-term
In December 2007, Anderson noted that Garrison‘s mood was “unstable,” that Garrison was dealing with several family issues, and that Garrison was experiencing intense anxiety and severe racing thoughts. Anderson assessed a GAF score of 55, with a continued diagnosis of Bipolar Disorder II and PTSD. Garrison‘s attention and concentration, as well as her insight and judgment, were only “fair.” Garrison‘s condition did not materially change over the next few months. In January 2008, despite slight improvement due to use of Abilify, Anderson‘s records show that Garrison remained anxious and deeply paranoid, with a GAF score of 55–60.
That month, Dr. Adrianne Gallucci, Psy.D., a state agency consultant, reviewed some of Anderson‘s medical records and filled out a check-box form to state her conclusions. Gallucci opined that Garrison‘s impairments were “severe but not expected to last 12 months,” and identified “[c]oexisting [n]onmental [i]mpairment(s) that require referral to another medical specialty.” Gallucci checked off the boxes for affective disorders, mental retardation, and anxiety-related disorders. Under affective disorders, Gallucci marked bipolar disorder. In a summary section, Gallucci checked boxes for “mild” degree of limitation of function in “restriction of activities of daily living” and “difficulties in maintaining social functioning.” Gallucci checked boxes for “moderate” degree of difficulties in “maintaining concentration, persistence, or pace.” In a brief explanation section, Gallucci remarked that Garrison had experienced a good initial
Anderson‘s records show that, in February 2008, Garrison‘s GAF dropped to 55. In her visit, Garrison reported hearing ghosts and spirits calling her name, a variety of other auditory and visual hallucinations, nightmares, severe anxiety, obsessive preoccupations, and persistent insomnia. Her attention and concentration, as well as her insight and judgment, remained only “fair.”
That month, Anderson completed a “Medical Assessment of the Patient‘s Ability to Perform Work Related Activity” (“the 2008 Assessment”). In it, Anderson reported a moderate impairment in Garrison‘s ability to relate to other people; to perform daily activities; to understand, carry out, and remember instructions; to respond appropriately to supervision; to respond appropriately to co-workers; and to perform varied tasks. Anderson reported moderately severe constriction of interests, including in Garrison‘s ability to respond to customary work pressures; ability to perform complex tasks; ability to complete a normal workday/workweek without interruptions from psychologically based symptoms; and ability to perform at a consistent pace without an unreasonable number/length of rest periods. Anderson checked “Yes” when asked, “Have the above limitations lasted or can they be expected to last for 12 months or longer?” Anderson also filled out the comment section of the form, writing as follows: “Client has poor coping skills, auditory hallucinations, unstable moods, and severe anxiety. These psychiatric symptoms are complicated by multiple medical problems.”
Garrison‘s GAF score dropped again in September 2008, this time to 50, and Anderson again recorded issues including hallucinations, insomnia, anxiety, and racing thoughts. By late September, Garrison‘s issues expanded to include overwhelming depression and paranoia. Throughout this period, her attention and concentration, as well as her insight and judgment, remained “limited.” Then, from November 2008 to February 2009, Garrison‘s mental health improved somewhat. Anderson recorded GAF scores ranging from 55 to 61 in this period, noting that, although Garrison remained anxious and was at times tearful, treatment was helping to alleviate Garrison‘s more severe symptoms, including her panic attacks, paranoia, and hallucinations.
Garrison‘s GAF score remained 50 in May 2009. That month, Anderson observed that Garrison had fainted on several occasions when upset, was still experiencing insomnia and racing thoughts, and still had only partial insight and judgment. In June 2009, Garrison felt a bit better, but was still “up and down.” Her GAF score remained 50, an indication of “serious symptoms” or “serious impairment in social, occupational, or school functioning,” she was still troubled by bouts of racing thoughts and anxiety, and Anderson was still trying, apparently with only mixed success, to adjust her medications.
II
At the June 14, 2009 hearing before the ALJ, Garrison testified about how her physical and mental impairments affect her daily life. A VE also testified, mainly by answering a series of hypothetical questions.
A. Garrison‘s Testimony
At the June 14, 2009 hearing, Garrison testified that she stopped working in April 2007 because she was “having problems with [her] back and [her] neck,” rising to the level
Turning to her mental impairments, Garrison testified, “I have a lot of anxiety” and “a lot of ups and downs and depression.” She stated that she experiences panic attacks that sometimes cause her to pass out, and that these attacks are triggered by tasks like grocery shopping alone. She avoids talking to people to prevent stress, occasionally experiences suicidal thoughts, and, when she is feeling depressed, spends days alone in her room with the light out. When she feels “up,” however, she cannot sleep for days at a time and experiences auditory hallucinations in which voices criticize her for ruining her life. Garrison noted that her “seizure” condition has improved somewhat since she started taking Prozac.
B. The Vocational Expert‘s Testimony
The VE answered a series of questions posed by the ALJ and by Garrison‘s lawyer about a hypothetical person‘s ability either to perform past relevant work or sustain the demands of work.
The ALJ first posed this hypothetical question:
I‘m asking you to consider a hypothetical person the same age, education, and work history as Ms. Garrison. The first question is, this hypothetical person could perform work frequently lifting and carrying 10 pounds, occasionally 20 pounds; could stand and/or walk with normal breaks about six out of eight hours; sit with normal breaks about six out of eight hours; no limits in pushing or pulling; can never climb ladders, ropes, or scaffolds; can occasionally climb ramps and stairs;
occasionally stoop, kneel, crouch, and crawl. This person can occasionally reach overhead. The person must avoid concentrated exposure to fumes, odors, dust, gasses, poor ventilation, and hazards. This person is restricted to performing simple work. Could this hypothetical person perform any of the past relevant work?
The VE replied that such a person could perform the past relevant work of “[t]he cashier/checker, bus monitor, teacher‘s aide, and the pizza maker.”
Next, the ALJ posed this question to the VE: “I‘d ask you to consider the same hypothetical person. This person frequently had deficiencies of concentration, persistence, or pace resulting in failure to complete tasks in a timely manner. Would that person be able to sustain the mental demands of work?” The VE replied, “No.”
Garrison‘s lawyer then posed the following hypothetical question:
[P]lease assume an individual the claimant‘s age, education, and work experience, but assume they were limited as follows. . . . The person had a moderately severe limitation, and that‘s defined as an impairment which seriously affects the ability to function, and that would be in the following areas: ability to understand, carry out, and remember instructions; respond appropriately to supervision; respond, [sic.] respond appropriate[ly] to co-workers; respond to
Finally, Garrison‘s lawyer asked, “Given the limitations testified to [by Garrison], were they credible, would you agree those would preclude both the claimant‘s past relevant work and all other work?” The VE replied, “Yes.”
III
On October 29, 2009, the ALJ issued a decision concluding that Garrison was not disabled within the meaning of the Social Security Act. At step one of the five-step sequential evaluation process,6 the ALJ determined that
Garrison had not engaged in substantial gainful activity since April 17, 2007, the alleged onset date.7 At step two, the ALJ found that Garrison had the following medically determinable severe impairments: “borderline intellectual functioning, bipolar disorder, posttraumatic stress disorders, polysubstance dependence (in sustained remission), degenerative disc disease of the lumbar, cervical and thoracic spine, obseity, and asthma.” At step three, the ALJ concluded that Garrison did not meet or medically equal any of the listed impairments in
In assessing Garrison‘s residual functional capacity, the ALJ started by discrediting part of Garrison‘s testimony. The ALJ concluded that, while Garrison‘s medically determinable impairments could reasonably be expected to produce the alleged symptoms, Garrison‘s “statements concerning the
Turning to Garrison‘s testimony concerning her physical impairments, the ALJ stated that “the claimant physically improved in 2007 and 2008 with conservative medical treatment, i.e., physical therapy and epidural injections.” The ALJ also observed that Garrison helped prepare meals, cleaned her room, talked on the phone frequently, and helped care for her own daughter, activities that the ALJ deemed inconsistent with Garrison‘s allegations of disability. In sum, the ALJ remarked that “there may have a [sic] short time during the adjudicatory period in which the claimant has been non-functional,” but “most of these times were when the claimant was either not taking her psychotropic medications or before she had undergone physical therapy for her neck/back pain.”8
IV
After exhausting administrative remedies, Garrison appealed to the district court, which concluded that her case should be remanded to the ALJ for further proceedings. In reaching that result, the district court first concluded that the “panoply of reasons” given by the ALJ for rejecting Garrison‘s symptom testimony was sufficiently specific, clear, and convincing.
The district court then considered the ALJ‘s decision to give substantial weight to the state agency consultants,
Turning to Griffith and General, the district court first noted that “Griffith had no medical records from any treating or other examining physician to review,” and agreed with Garrison that “it is not clear from the ALJ‘s decision that she had an adequate basis for using Dr. Griffith‘s one-time
Ultimately, the district court concluded that it lacked a sufficient explanation from the ALJ of why she declined to give substantial weight to the opinions of Wang and Anderson, and why she instead credited Griffith. The district court therefore remanded to the Commissioner, stating that, if the opinions of Wang and Anderson were properly given little weight, Garrison would not be entitled to an award of benefits.
Garrison timely appealed this ruling, contending that the district court abused its discretion in remanding to the Commissioner for further proceedings instead of remanding for a calculation and award of benefits.
DISCUSSION
I
“[A] district court‘s decision to affirm, reverse or modify a determination of the Social Security Administration is reviewed de novo on appeal. We also review de novo a district court‘s determination to remand a case to the Commissioner.” Harman v. Apfel, 211 F.3d 1172, 1174 (9th Cir. 2000) (citation omitted).
We conclude that the ALJ erred in rejecting Wang and Anderson‘s medical opinions, that she misunderstood General‘s opinion of Garrison‘s impairments, and that she failed to meet the requirement of offering specific, clear, and convincing reasons for discrediting Garrison‘s symptom testimony.
A. The Five-Step Sequential Process
The Social Security Act defines “disability” as the inability to engage “in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.”
ALJs apply a five-step evaluation process to determine whether a claimant qualifies as disabled. Ludwig v. Astrue, 681 F.3d 1047, 1048 n.1 (9th Cir. 2012). That procedure is set forth at
(4) The five-step sequential evaluation process. The sequential evaluation process is
a series of five “steps” that we follow in a set order . . . If we can find that you are disabled or not disabled at a step, we make our determination or decision and we do not go on to the next step. If we cannot find that you are disabled or not disabled at a step, we go on to the next step. Before we go from step three to step four, we assess your residual functional capacity . . . . We use this residual functional capacity assessment at both step four and step five when we evaluate your claim at these steps. These are the five steps we follow: (i) At the first step, we consider your work activity, if any. If you are doing substantial gainful activity, we will find that you are not disabled . . .
(ii) At the second step, we consider the medical severity of your impairment(s). If you do not have a severe medically determinable physical or mental impairment that meets the duration requirement in
§ 404.1509 , or a combination of impairments that is severe and meets the duration requirement, we will find that you are not disabled . . .(iii) At the third step, we also consider the medical severity of your impairment(s). If you have an impairment(s) that meets or equals one of our listings in appendix 1 of this subpart and meets the duration
requirement, we will find that you are disabled . . . (iv) At the fourth step, we consider our assessment of your residual functional capacity and your past relevant work. If you can still do your past relevant work, we will find that you are not disabled . . .
(v) At the fifth and last step, we consider our assessment of your residual functional capacity and your age, education, and work experience to see if you can make an adjustment to other work. If you can make an adjustment to other work, we will find that you are not disabled. If you cannot make an adjustment to other work, we will find that you are disabled . . .
At steps four and five, the ALJ determines a claimant‘s residual functional capacity (“RFC“).
If, at step four, “a claimant shows that he or she cannot return to his or her previous job, the burden of proof shifts to the Secretary to show that the claimant can do other kinds of work.” Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988). Thus, “[a]t step five, the ALJ can call upon a [VE] to testify as to: (1) what jobs the claimant, given his or her [RFC], would be able to do; and (2) the availability of such jobs in the national economy.” Tackett v. Apfel, 180 F.3d 1094, 1101 (9th Cir. 1999). The ALJ may pose hypothetical questions to the expert that “set out all of the claimant‘s impairments” for the VE‘s consideration. Gamer v. Secretary of Health and Human Servs., 815 F.2d 1275, 1279 (9th Cir. 1987). “The ALJ‘s depiction of the claimant‘s disability must be accurate, detailed, and supported by the medical record.” Tackett, 180 F.3d at 1101 (citation omitted). “The testimony of a [VE] is valuable only to the extent that it is supported by medical evidence” and has “no evidentiary value if the assumptions in the hypothetical are not supported by the record.” Magallanes v. Bowen, 881 F.2d 747, 756 (9th Cir. 1989) (citations omitted). “The [VE] then ‘“translates [these] factual scenarios into realistic job market probabilities” by testifying on the record to what kinds of jobs the claimant still can perform and whether there is a sufficient number of those jobs available in the claimant‘s region or in several other regions of the economy to support a finding of “not disabled.“‘” Tackett, 180 F.3d at 1101 (citations omitted) (second alteration in the original).
1. Applicable Law
“In disability benefits cases . . . physicians may render medical, clinical opinions, or they may render opinions on the ultimate issue of disability—the claimant‘s ability to perform work.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citation omitted). “In conjunction with the relevant regulations, we have . . . developed standards that guide our analysis of an ALJ‘s weighing of medical evidence.” Ryan v. Comm‘r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). Specifically, we “distinguish among the opinions of three types of physicians: (1) those who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant (examining physicians); and (3) those who neither examine nor treat the claimant (nonexamining physicians).” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). “As a general rule, more weight should be given to the opinion of a treating source than to the opinion of doctors who do not treat the claimant.”10 Id. (citing Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987)). While the opinion of a treating physician is thus entitled to greater weight than that of an examining physician, the opinion of an examining physician is entitled to greater weight than that of a non-examining
“If a treating or examining doctor‘s opinion is contradicted by another doctor‘s opinion, an ALJ may only reject it by providing specific and legitimate reasons that are supported by substantial evidence.”11 Id. This is so because, even when contradicted, a treating or examining physician‘s opinion is still owed deference and will often be “entitled to the greatest weight . . . even if it does not meet the test for controlling weight.” Orn v. Astrue, 495 F.3d 625, 633 (9th Cir. 2007). An ALJ can satisfy the “substantial evidence” requirement by “setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings.” Reddick, 157 F.3d at 725. “The ALJ must do more than state conclusions. He must set forth his own interpretations and explain why they, rather than the doctors‘, are correct.” Id. (citation omitted).
Where an ALJ does not explicitly reject a medical opinion or set forth specific, legitimate reasons for crediting one medical opinion over another, he errs. See Nguyen v. Chater,
2. Application of Law to Fact
In a ruling that the government does not contest on appeal, the district court correctly concluded that the ALJ did not offer specific and legitimate reasons supported by substantial evidence for rejecting the testimony of Wang and Anderson. The district court also correctly concluded that the ALJ misunderstood General‘s opinion regarding Garrison‘s mental health. We briefly address this issue because the ALJ‘s significant and numerous errors in evaluating the medical opinion evidence help clarify why these opinions are, in fact, worthy of substantial weight and why it is appropriate to remand this case for an award of benefits.
In evaluating Wang‘s testimony, the ALJ committed a variety of egregious and important errors: (1) she entirely ignored most of his treatment records, including reports from Dr. Feldman, dozens of medical test results, and Wang‘s own treatment notes; (2) she failed to recognize that the opinions expressed in check-box form in the February 2008 PFC Questionnaire were based on significant experience with Garrison and supported by numerous records, and were therefore entitled to weight that an otherwise unsupported and unexplained check-box form would not merit12; (3) she did
Finally, the ALJ completely misunderstood General‘s report. Whereas the ALJ described it as supporting a finding that Garrison is not disabled and is capable of “light, simple work,” General expressly stated that Garrison‘s “prognosis for returning to work is currently poor,” “she does not have sufficient emotional control,” and “her ability to perform
C. The ALJ failed to offer specific, clear, and convincing reasons for discrediting Garrison‘s symptom testimony
The ALJ discredited, to the extent it was inconsistent with her finding that Garrison is not disabled, Garrison‘s testimony about the intensity, persistence, and pace of her symptoms. In doing so, the ALJ erred.
1. Applicable Law
An ALJ engages in a two-step analysis to determine whether a claimant‘s testimony regarding subjective pain or symptoms is credible. “First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment ‘which could reasonably be expected to produce the pain or other symptoms alleged.‘” Lingenfelter, 504 F.3d at 1035–36 (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc) (internal quotation marks omitted)). In this analysis, the claimant is not required to show “that her impairment could reasonably be expected to cause the severity of the symptom she has alleged; she need only show that it could reasonably have caused some degree of the symptom.” Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996). Nor must a claimant produce “objective medical
If the claimant satisfies the first step of this analysis, and there is no evidence of malingering, “the ALJ can reject the claimant‘s testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so.”18 Smolen, 80 F.3d at 1281; see also Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006) (“[U]nless an ALJ makes a finding of malingering based on affirmative evidence thereof, he or she may only find an applicant not credible by making specific findings as to credibility and stating clear and convincing reasons for each.“). This is not an easy requirement to meet: “The clear and convincing standard is the most demanding required in Social Security cases.” Moore v. Comm‘r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002).
2. Application of Law to Fact
Garrison testified about her physical and mental health. We separately address the ALJ‘s grounds for discrediting each part of Garrison‘s testimony.
a. Garrison‘s Pain Testimony
The ALJ rejected Garrison‘s pain testimony on two grounds: (1) Garrison improved in 2007 and 2008 with the “conservative” treatments of epidural injections and physical therapy; and (2) Garrison engaged in daily activities including
The first of these reasons is belied by the evidence and must be rejected. Garrison‘s medical records show that physical therapy afforded her only partial and short-lived relief of her lower back pain, and no effective relief for her radiating neck pain.19 Turning to the epidural shots, Wang and Feldman‘s records make clear that epidural shots never provided Garrison any relief for her neck pain, and that they relieved Garrison‘s back pain for only variable, brief periods of time, ranging from a couple of months to a few days. The other treatments prescribed by Wang, including pain pills, caused side effects including intense sleepiness and drowsiness and, even when taken several times per day, provided only limited periods of relief from the otherwise constant pain.
In sum, there is no support in the record for the ALJ‘s belief that physical therapy and epidural shots alleviated Garrison‘s pain enough that her testimony regarding pain was incredible. To the contrary, the record shows that, despite Wang‘s efforts, Garrison‘s neck and back pain, which radiated into her shoulders, arms, and legs, persisted largely
The ALJ‘s other reason for discrediting Garrison‘s testimony was its supposed inconsistency with her reported daily activities, which, again, included talking on the phone, preparing meals, cleaning her room, and helping to care for her daughter. The ALJ committed two errors here. First, she mischaracterized Garrison‘s testimony. Garrison repeatedly emphasized that in performing many daily tasks, including caring for her daughter, she was heavily assisted by her mother. She also made clear that she is regularly prohibited by her pain from engaging in activities such as doing laundry, picking up her daughter, and carrying bags that weigh more than a few pounds. Finally, Garrison testified that after performing such activities, she often must rest, leading her to nap several hours per day.
Second, the ALJ erred in finding that these activities, if performed in the manner that Garrison described, are inconsistent with the pain-related impairments that Garrison described in her testimony. We have repeatedly warned that ALJs must be especially cautious in concluding that daily activities are inconsistent with testimony about pain, because impairments that would unquestionably preclude work and all the pressures of a workplace environment will often be consistent with doing more than merely resting in bed all day. See, e.g., Smolen, 80 F.3d at 1287 n.7 (“The Social Security
Here, Garrison‘s daily activities, as she described them in her testimony, were consistent with her statements about the impairments caused by her pain. The ability to talk on the phone, prepare meals once or twice a day, occasionally clean one‘s room, and, with significant assistance, care for one‘s daughter, all while taking frequent hours-long rests, avoiding any heavy lifting, and lying in bed most of the day, is consistent with the pain that Garrison described in her
b. Garrison‘s Mental Health Testimony
The ALJ discredited Garrison‘s mental health testimony mainly on the ground that the record showed that Garrison‘s condition had improved due to medication at a few points between April 2007 and June 2009. The ALJ added that some of Garrison‘s mental impairments were caused by Garrison going off her medication. These are not clear, convincing, and specific grounds for rejecting Garrison‘s testimony that, since April 2007, she had suffered panic attacks, “a lot of ups and downs and depression,” severe anxiety, occasional suicidal thoughts, and bouts of paranoia and mania—symptoms that caused major difficulties with social functioning and responding to such stresses as shopping unaccompanied for groceries.
As we have emphasized while discussing mental health issues, it is error to reject a claimant‘s testimony merely because symptoms wax and wane in the course of treatment. Cycles of improvement and debilitating symptoms are a common occurrence, and in such circumstances it is error for an ALJ to pick out a few isolated instances of improvement
These rules clarify the nature of the ALJ‘s error. Rather than describe Garrison‘s symptoms, course of treatment, and bouts of remission, and thereby chart a course of improvement, the ALJ improperly singled out a few periods of temporary well-being from a sustained period of impairment and relied on those instances to discredit Garrison. While ALJs obviously must rely on examples to show why they do not believe that a claimant is credible, the data points they choose must in fact constitute examples of a
The ALJ did not offer specific, clear, and convincing reasons for rejecting Garrison‘s testimony concerning her physical and mental impairments. In fact, the reasons given by the ALJ not only fail this demanding standard, but also would fail a far more forgiving inquiry, as they are plainly belied by the record and rest upon mischaracterizations of Garrison‘s testimony.
III
Reviewing for abuse of discretion, see Harman, 211 F.3d at 1173, we reverse the district court‘s decision to remand this case to the ALJ for further proceedings, and instead remand to the district court with instructions to remand to the ALJ for a calculation and award of appropriate benefits.
A. Applicable Law
Usually, “[i]f additional proceedings can remedy defects in the original administrative proceeding, a social security case should be remanded.” Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981). The Social Security Act, however, makes clear that courts are empowered to affirm, modify, or reverse a decision by the Commissioner “with or without remanding the cause for a rehearing.”
This Circuit clarified the scope of judicial power to remand for an award of benefits in Varney v. Sec‘y of Health & Human Servs., 859 F.2d 1396 (9th Cir. 1988) (”Varney II“). There, we held 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, we will not remand solely to allow the ALJ to make specific findings regarding that testimony. Rather, we will . . . take that testimony to be established as true.” Id. at 1401. We explained that this credit-as-true rule is designed to achieve fairness and efficiency:
We believe [that this] rule promotes the objectives we have identified in prior disability cases. Requiring the ALJs to specify any factors discrediting a claimant at the first opportunity helps to improve the performance of the ALJs by discouraging them from reaching a conclusion first, and
then attempting to justify it by ignoring competent evidence in the record that suggests an opposite result. It helps to ensure that pain testimony will be carefully assessed and its importance recognized. Moreover, it avoids unnecessary duplication in the administrative hearings and reduces the administrative burden caused by requiring multiple proceedings in the same case. Perhaps most important, by ensuring that credible claimants’ testimony is accepted the first time around, the rule reduces the delay and uncertainty often found in this area of the law, and ensures that deserving claimants will receive benefits as soon as possible. As already noted, applicants for disability benefits often suffer from painful and debilitating conditions, as well as severe economic hardship. Delaying the payment of benefits by requiring multiple administrative proceedings that are duplicative and unnecessary only serves to cause the applicant further damage—financial, medical, and emotional. Such damage can never be remedied. Without endangering the integrity of the disability determination process, a principal goal of that process must be the speedy resolution of disability applicants’ claims. At the same time, the rule does not unduly burden the ALJs, nor should it result in the wrongful award of benefits . . . [I]f grounds for [concluding that a claimant is not disabled] exist, it is both reasonable and desirable to require the ALJ to articulate them in the original decision.
Id. at 1398-99 (quotation marks, citations, and alterations omitted). In light of these concerns, we noted, “[w]here remand would unnecessarily delay the receipt of benefits, judgment for the claimant is appropriate.” Id. at 1399. One year later, in Hammock v. Bowen, we held that the credit-as-true rule applies to medical opinion evidence, not only claimant testimony. See 879 F.2d 498 (9th Cir. 1989).
Since Varney II, we have applied the credit-as-true rule in nearly two dozen published opinions.25 In those cases, we have developed a workable and stable framework for applying the credit-as-true rule. Specifically, we have devised a three-part credit-as-true standard, each part of which must be satisfied in order for a court to remand to an ALJ with instructions to calculate and award benefits: (1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand.26 See Ryan, 528 F.3d at 1202;
Lingenfelter, 504 F.3d at 1041; Orn, 495 F.3d at 640; Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004); Smolen, 80 F.3d at 1292.
We have, in a number of cases, stated or implied that it would be an abuse of discretion for a district court not to remand for an award of benefits when all of these conditions are met. See, e.g., Lingenfelter, 504 F.3d at 1041; Orn, 495 F.3d at 649; McCartey v. Massanari, 298 F.3d 1072, 1076-77 (9th Cir. 2002); Harman, 211 F.3d at 1178; Smolen, 80 F.3d at 1292; Lester, 81 F.3d at 834; Ramirez v. Shalala, 8 F.3d 1449, 1455 (9th Cir. 1993); Swenson v. Sullivan, 876 F.2d 683, 689 (9th Cir. 1989). In the 2003 case of Connett v. Barnhart, 340 F.3d 871 (9th Cir. 2003), however, we cautioned that the credit-as-true rule may not be dispositive of the remand question in all cases. Rather, recognizing that this rule, like most, admits of exceptions meant to preserve the rule‘s purpose, we noted that the credit-as-true doctrine envisions “some flexibility.” Id. at 876. Connett then concluded that under the circumstances there present a remand for an award of benefits was not mandatory and remanded for further proceedings. Connett, however, did not address when such flexibility is appropriately exercised—in other words, it did not explain when remand for further proceedings rather than for an award of benefits would be appropriate even though the credit-as-true rule‘s conditions are met. We have applied the credit-as-true rule in a number of cases since Connett, but have not in a published opinion exercised the “flexibility” noted in that decision, nor have we clarified the nature of the “flexibility” that we there described. See, e.g., Lingenfelter, 504 F.3d at
Recalling that, in social security cases, “the required analysis centers on what the record evidence shows about the existence or non-existence of a disability,” Strauss v. Comm‘r of the Soc. Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011), Connett‘s “flexibility” is properly understood as requiring courts to remand for further proceedings when, even though all conditions of the credit-as-true rule are satisfied, an evaluation of the record as a whole creates serious doubt that a claimant is, in fact, disabled. That interpretation best aligns the credit-as-true rule, which preserves efficiency and fairness in a process that can sometimes take years before benefits are awarded to needy claimants, with the basic requirement that a claimant be disabled in order to receive benefits. Thus, when we conclude that a claimant is otherwise entitled to an immediate award of benefits under the credit-as-true analysis, Connett allows flexibility to remand for further proceedings when the record as a whole creates serious doubt as to whether the claimant is, in fact, disabled within the meaning of the Social Security Act.
As we explain infra, here the district court abused its discretion by remanding for further proceedings where the credit-as-true rule is satisfied and the record afforded no reason to believe that Garrison is not, in fact, disabled.27
Garrison unquestionably satisfies all three conditions of the credit-as-true rule. First, there is no need to develop the record or convene further administrative proceedings.28 Although the Commissioner argues that further proceedings would serve the “useful purpose” of allowing the ALJ to revisit the medical opinions and testimony that she rejected for legally insufficient reasons, our precedent and the objectives of the credit-as-true rule foreclose the argument that a remand for the purpose of allowing the ALJ to have a mulligan qualifies as a remand for a “useful purpose” under the first part of credit-as-true analysis. See Benecke, 379 F.3d at 595 (“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.“); Moisa, 367 F.3d
Second, as we have already explained at length, the ALJ failed to provide a legally sufficient reason to reject Garrison‘s testimony and the opinions of her treating and examining medical caretakers. We need not repeat this analysis here.
Third, if the improperly discredited evidence were credited as true, it is clear that the ALJ would be required to find Garrison disabled on remand.29 Our conclusion follows directly from our analysis of the ALJ‘s errors and the strength of the improperly discredited evidence, which we credit as true: a treating doctor, a treating nurse practitioner, and an examining psychologist all deemed Garrison to be disabled, Garrison testified to an array of severe physical and mental impairments, and a VE explicitly testified that a person with the impairments described by Garrison or her medical caretakers could not work. Accordingly, Garrison satisfies the requirements of the credit-as-true standard.
Having concluded that Garrison satisfies all three parts of credit-as-true analysis, we now turn to the question whether
In sum, we conclude that Garrison satisfies all three conditions of the credit-as-true rule and that a careful review of the record discloses no reason to seriously doubt that she is, in fact, disabled. A remand for a calculation and award of benefits is therefore required under our credit-as-true precedents.
CONCLUSION
We conclude that the ALJ erred in assigning little weight to Wang and Anderson‘s opinions, erred in her characterization of General‘s opinion, and failed to offer specific, clear, and convincing reasons for discrediting part of Garrison‘s testimony. We further conclude that the district court abused its discretion in remanding for further proceedings. We reverse the judgment of the district court with instructions to remand to the ALJ for the calculation and award of benefits.
REVERSED AND REMANDED