Lead Opinion
OPINION
Allen Treichler appeals the district court’s decision affirming in part and reversing and remanding in part the Social Security Commissioner’s denial of his application for disability insurance benefits pursuant to the Social Security Act. He argues that the administrative law judge (ALJ) failed to provide sufficient reasons for finding him not credible, and therefore erred in rejecting his disability claim. He also contends that in light of this error, we should remand his case to the Commissioner for the payment of benefits. We agree the ALJ erred in failing to identify the portions of Treichler’s testimony the ALJ found not credible, and in failing to explain how the ALJ arrived at that con-
I
Treichler worked as a tree trimmer until July 14, 2004, when he fell out of a tree and sustained fractures to his lumbar spine, right tibia, right heel, and left ankle. According to the evidence in the record, Treichler’s fractures healed well, except for his left ankle, which developed osteo-myelitis and was eventually fused.
After his surgeries, Treichler received an independent medical examination from Dr. Mark Leadbetter, an orthopedic surgeon, in November 2005. Treichler’s chief complaint was lower back pain, right knee pain and ankle pain. He also reported that he had “normal bowel and bladder control,” but had “difficulty with evacuation.” After reviewing Treichler’s medical history and performing a physical examination, Dr. Leadbetter concluded that all of Treichler’s conditions, except the fractured left ankle, were medically stationary as of that date. He also opined that Treichler would be able to participate in vocational assistance activities, though weight-bearing activities would be hampered by his left ankle condition. According to Dr. Leadbetter, Treichler “would be able to stand for a total of two hours at a time in an eight hour day” but “would have to have reasonable breaks.”
On the same day as Treichler’s examination by Dr. Leadbetter, an occupational therapist conducted an outpatient physical capacity evaluation of Treichler. According to the evaluation, Treichler demonstrated residual physical capacities in the sedentary-light work range, and could sit, stand, and walk, each for 60 minutes at a time, four to six hours per day; could occasionally lift 20 pounds from waist to chest level and from waist to overhead level; occasionally carry ten pounds up to 50 feet; push and pull 44 pounds occasionally; perform light, repetitive work; frequently bend and twist; occasionally do a partial squat; and climb limited stairs. Treichler agreed with this assessment.
In 2006, Treichler enrolled in a return-to-work program for becoming a cost estimator. A position as a cost estimator would require Treichler to sit for up to 30 minutes at a time for a total of four hours a day, and stand for four hours a day. The cost estimator could frequently change positions and would have to walk occasionally.
A July 2006 report from Dr. Craig McNabb, Treichler’s treating physician, stated that he had reviewed the job description for cost estimator and felt “that [Treichler] could tolerate this job.” The same medical report stated that Treichler was on an “intermittent catheterization program” for his “neurogenic bladder,” and that “[h]e seems to be tolerating it fairly well but has continued to have some problems with urinating and the intermittent catheterization is allowing him to empty his bladder fully.” Dr. McNabb also noted that Treichler was taking methadone for pain. Dr. McNabb subsequently confirmed to the worker’s compensation insurance company that he would release Treichler for the position as cost estimator. Dr. Charles Pederson, one of Treichler’s surgeons, also released Treich-ler for the job.
In March 2007, Treichler filed an application for disability and disability insurance benefits. He had been seeing Dr. Kent Toland, a urologist, for a urinary tract infection. Dr. Toland advised Treichler that he should catheterize at least twice a day. A nurse had noted that Treichler’s “bladder seems to be able to
On August 20, 2007, non-examining state physician Dr. Sharon Eder reviewed Treichler’s medical file and completed a physical residual functional capacity assessment. Dr. Eder concluded that Treichler could lift and/or carry 20 pounds occasionally and ten pounds frequently, stand and/or walk for a total of at least two hours in an eight-hour workday, sit for a total of about six hours in an eight-hour workday, and occasionally balance, stoop, kneel, crouch and crawl. Non-examining state physicians Dr. Martin Kehrli and Dr. Jeffrey Wheeler confirmed this assessment.
Treichler’s disability claim was denied on August 22, 2007, and again upon reconsideration on January 9, 2008. Treichler filed a written request for a hearing on February 4, 2008.
In March 2008, Dr. McNabb reported that methadone “seems to be controlling [Treichler’s pain] adequately.” A subsequent report in September 2008 stated that while Treichler continued to have pain, “[t]he methadone does help significantly.” A year later, Dr. McNabb stated that the methadone “seems to be allowing [Treichler] to be somewhat functional without any significant decrease in his abilities,” though it also noted that Treichler “still is not very active because it does not take all of his pain away.” And in September 2009, Dr. McNabb reported that Treichler “states that the methadone is making his life tolerable.” While “he still has significant amount of pain at times,” Treichler reported that “for the most part he is able to do most of his activities.”
The hearing before the ALJ took place in Albany, Oregon, on December 15, 2009. Treichler submitted medical records and testified regarding the severity and impact of his symptoms. Treichler claimed he was “not very mobile,” and that he frequently experienced severe pain in his back and right ankle. Treichler testified that although he can stand and walk, it causes pain and he has to sit down after five to ten minutes. He also stated that he drives a car a short distance, can do household chores if he has to, takes care of his dog, and goes fishing occasionally. In addition, he works in his woodworking shop when he gets bored. Treichler described a typical day as getting up, making himself a meal, playing with his pets, and sometimes doing yard work. According to Treichler, his back is always in pain and he has a really bad day “[p]robably twice a week.” On a bad day, he may stay in bed all day. Treichler testified that methadone “takes away a lot of it [pain], but it—I mean nothing takes away all of it.”
When asked about his urinary incontinence, Treichler testified that his “bladder just lets go” and he “wet[s][him]self” around two to three times a week, “a lot at night.” He also related that on a “bad week during the daytime” he might lose bladder control “[p]robably three times.” Treichler’s bladder difficulties require him to self-catheterize up to four times a day. With regard to fecal incontinence, Treich-ler claimed that “about once or twice a month” he “just lose[s] it.”
His wife testified at the hearing and described the lifestyle changes she and her husband have had to make following his surgeries. She also described how Treich-ler “really has a problem [with urinary incontinence] at night. You know, I’ve
The hearing concluded with testimony from a vocational expert. The ALJ described a hypothetical person who had the following characteristics: the person had “the same age, education and vocational background as Mr. Treichler”; the person “could lift 20 pounds occasionally, 10 pounds frequently,” could “sit[ ] six hours out of a normal eight-hour work day” and “stand and walk two hours,” “should never be required to climb,” although capable “of occasionally balancing, stooping, kneeling, crouching and crawling”; the person should “avoid even moderate exposure to hazards,” and “have the option.... to change position at least four times an hour to alleviate his discomfort”; and finally the person “is going to need to be able to go to the bathroom essentially at will, because of incontinence issues.” The expert testified that there were a significant number of jobs available in the national economy and in the region where Treichler lived that could be performed by someone with these physical characteristics, including the job of a document sorter.
Treichler’s attorney then inquired whether a person who “twice a week ... [is] going to make a mess and need time to ... either take a shower or clean up or he’s going to be unable to clean up and going to be a—frankly, a[n] ol[]factory nuisance” would be able to maintain employment. The vocational expert testified that such a person would not be able to do so. The attorney next asked about a different ' hypothetical person, one who “would miss more than two days of work per month on a random and unpredictable basis.” The expert again opined that no work would be available for someone who would have to miss that much work.
The ALJ followed up by asking whether allowing breaks for self-catheterization was “an acceptable accommodation from employers,” and the expert agreed that “it can be worked around.” The ALJ asked whether a person could use two 10 to 15 minute breaks for self-catheterization and still be able to maintain employment. The vocational expert said that those breaks were not “excessive.” But when asked by Treichler’s attorney whether an employer would tolerate a situation where “twice a month at randomly and unpredictably there’s a loss of bowel control despite best efforts,” the expert said that there would not be available work for such a person.
The ALJ issued a written decision denying Treichler’s application for disability on January 5, 2010. To assess whether Treichler was disabled, the ALJ employed the five-step sequential evaluation
Before considering step four of the sequential evaluation process, the ALJ had to assess Treichler’s residual functional capacity (“RFC”), see 20 C.F.R. § 404.1520(a)(4)(iv), which is “the most [the claimant] can still do despite [the claimant’s] limitations.” Id. § 404.1545(a)(1). The RFC assessment is “based on all the relevant medical and other evidence” in the claimant’s record. Id. § 404.1520(e).
In his written decision, the ALJ set out his determination regarding Treichler’s RFC based on the ALJ’s credibility findings and the weight he assigned to various pieces of medical evidence. According to the ALJ, Treichler could perform light work, with some restrictions.
The ALJ next summarized the medical evidence and indicated what weight he assigned to the various reports. The ALJ noted that Dr. McNabb and Dr. Pederson opined that Treichler’s symptoms were medically stationary. The ALJ gave great weight to Dr. Leadbetter’s conclusion that Treichler’s condition had stabilized and Treichler could participate in vocational assistance activities, including being able to stand for two hours at a time with reasonable breaks. The ALJ also gave weight to several physical capacity evaluations that stated that Treichler had the ability to perform sedentary-light work. Three non-examining consulting physicians agreed that Treichler had a RFC of light work with some movement limitations, and the ALJ gave “these assessments controlling weight as they are consistent with the medical evidence of record.”
Moving to step four, the ALJ found that Treichler was unable to perform any of his past relevant work as a tree trimmer and cable installer. At step five, the ALJ relied on the vocational expert’s testimony that jobs existed in the national economy for someone with Treichler’s age, education, experience, and RFC. Specifically, the vocational expert stated that a person with Treichler’s RFC could work as a document sorter. As a result, the ALJ held that Treichler was not disabled under the Social Security Act, 42 U.S.C. § 416(i), 423(d). The Appeals Council denied Treichler’s request for review of the ALJ’s decision.
Following an unsuccessful administrative appeal, Treichler sought review of the
Treichler now appeals the district court’s decision affirming the ALJ’s adverse credibility determination, and argues that the case should be remanded for an award of benefits. Although Treichler prevailed before the district court, he may nevertheless appeal the decision, because it does not grant the full measure of relief requested. See Forney v. Apfel,
II
We begin by considering the legal framework for addressing Treichler’s claims that the ALJ erred in making his credibility determination, and that we should therefore remand his case for an award of benefits. We review de novo a district court’s decision to affirm in part, reverse in part, and remand to the Commissioner. Harman v. Apfel,
A
In Title II of the Social Security Act, Congress entrusted the Commissioner with the power and authority to enact rules and regulations that govern the disability determination. See, e.g., 42 U.S.C. §§ 405, 421, 423. In particular, Congress authorized the Commissioner to “make findings, of fact, and decisions as to the rights of any individual applying for a payment” under the Act. Id. § 405(b)(1). By law, the disability determination is made by the Commissioner or authorized state agencies under the Commissioner’s supervision. See id. §§ 405, 421; 20 C.F.R. § 404.1503. If the Commissioner’s decision is unfavorable, it must “contain a statement of the case, in understandable language, setting forth a discussion of the evidence, and stating the Commissioner’s determination and the reason or reasons upon which it is based.” 42 U.S.C. § 404(a). The statute allows a claimant receiving an adverse decision to obtain administrative review. Id. § 405(b)(1).
After the final decision by the Commissioner, the claimant “may obtain a review of such decision by a civil action” in district court. Id. § 405(g). As with other agency decisions, federal court review of social security determinations is limited. We disturb the Commissioner’s decision to deny benefits “only if it is not supported by substantial evidence or is based on legal error.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.1995); see also Thomas v. Barnhart,
B
If the reviewing court determines “that the agency erred in some respect in reaching a decision to deny benefits,” Hoa Hong Van v. Barnhart,
The ordinary remand rule applies equally to Social Security cases. See, e.g., Lingenfelter v. Astrue,
We first described the circumstances where departing from the ordinary remand rule may be permissible in Varney v. Sec’y of Health & Human Servs.,
We subsequently distilled the Varney rule (sometimes referred to as the “credit-as-true” rule) into three steps. Under this procedure, we first ask whether the “ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical
Second, if the ALJ has erred, we determine whether “the record has been fully developed,” Garrison,
Third, if we conclude that no outstanding issues remain and further proceedings would not be useful, we may apply our prophylactic Varney rule, finding the relevant testimony credible as a matter of law, see Vasquez v. Astrue,
When all three elements of this Varney rule are satisfied, a case raises the “rare circumstances” that allow us to exercise our discretion to depart from the ordinary remand rule.
Ill
We turn now to Treichler’s claim that the ALJ erred in ruling that Treichler’s statements about the limiting effects of his medical problems were not credible.
The ALJ must make two findings before the ALJ can find a claimant’s pain or symptom testimony not credible. 42 U.S.C. § 423(d)(5)(A) (explaining that “[a]n individual’s statement as to pain or other symptoms shall not alone be conclusive evidence of disability” absent additional findings). “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,
Because the “grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based,” Chenery Corp.,
Here, the ALJ found that Treich-ler’s “medically determinable impairments could reasonably be expected to cause the alleged symptoms,” and did not find that Treichler was malingering. The ALJ did not, however, “specifically identify the testimony” he found not credible. Holohan,
But here, the ALJ stopped after this introductory remark. This was error and falls short of meeting the ALJ’s responsibility to provide “a discussion of the evidence” and “the reason or reasons upon which” his adverse determination is based. 42 U.S.C. § 405(b)(1). An ALJ’s “vague allegation” that a claimant’s testimony is “not consistent with the objective medical evidence,” without any “specific findings in support” of that conclusion is insufficient for our review. Vasquez,
Nor is the error harmless. Because the ALJ set out his RFC and summarized the evidence supporting his determination, the government argues that we can reasonably infer that the ALJ rejected Treichler’s testimony to the extent it conflicted with that medical evidence. But we cannot substitute our conclusions for the ALJ’s, or speculate as to the grounds for the ALJ’s conclusions. See Bunnell,
IV
We now come to Treichler’s contention that we should exercise our discretion to remand his case for an award of benefits. In making this argument, Treichler points to his testimony regarding the severity of his urinary incontinence, fecal incontinence, and disabling pain, and the vocational expert’s testimony that a person who has such problems would not be able to maintain employment.
We begin our analysis with our three-step framework to deduce whether this is one of the rare circumstances where we may decide not to remand for further proceedings. See Garrison,
Second, we turn to the question whether further administrative proceedings would be useful. Id.; Varney II,
In this case, there are significant factual conflicts in the record between Treichler’s testimony and objective medical evidence. With regard to his incontinence issues, Treichler testified that he “wet[s]” himself “two or three times a week,” mostly at night, while on a “bad week during the daytime,” he could lose control of his bladder “[pjrobably three times” in a week. This testimony conflicts with other evidence in the record as to daytime urinary incontinence. Dr. Toland, Treichler’s urologist, and the nurses who treated him for his bladder impairments uniformly observed that Treichler had difficulty voiding urine during the day, while he suffered from incontinence at night. For example; an August 24, 2006 progress note reflects that Treichler “has had difficulty voiding with occasional leakage of urine especially at nighttime often soaking the bed” leading to a diagnosis of nocturnal enuresis. Other notes similarly reported that Treich-ler claimed that he “gets up multiple times throughout the night” and “often will wet the bed,” or that Treichler “feels that he has to strain to empty his bladder, has significant urinary frequency getting up 5 or more times at night,” wetting the bed “[ajbout 2-3 times a week.” The notes consistently report that the incontinence issue occurs at night, while Treichler claims that he regularly has daytime problems.
Treichler also testified that he experienced fecal incontinence where he would “just lose it ... about once or twice a month.” The one relevant medical report in the record on this issue, however, stated that Treichler reported constipation and “deniefd] any fecal incontinence.” There is no' other evidence of complaints to his doctors or other medical professionals regarding fecal incontinence.
Finally, Treichler testified that he had debilitating pain twice a week that resulted in him just laying in bed.. Dr. McNabb, however, noted that Treichler’s pain medication makes his life “tolerable,” and that he is able to perform the majority of his activities. At the hearing, Treichler testified that medication “takes away a lot of it [pain],” while not “all of it.”
The dissent’s assertion that “the record amply supports Treichler’s testimony,” Dissent at 1108-09, and therefore a court is required to remand for an award of benefits, is wrong factually and legally. The dissent points to single words or phrases plucked from individual reports in the record to support its conclusion that Treich-ler’s pain renders him disabled. See Dissent at 1109. But when read in context, the record indicates only that Treichler required medical assistance to manage the pain stemming from his injuries; it does establish that this pain rendered him unemployable.
In light of the conflicts and ambiguities in the record, the district court would not abuse its discretion in concluding that not all essential factual issues have been resolved, or that “the record is fully developed and it is clear from the record that the ALJ would be required to award benefits.” Holohan,
Treichler argues that because the ALJ erred, we should credit his testimony as true. Once we have done so, he argues, there would be no outstanding issues to resolve and we should remand for benefits. The dissent likewise contends that a court must first take the claimant’s testimony as true and then determine if there are any outstanding issues that require resolution. Dissent at 1110-11. This is an erroneous reading of our case law, which requires us to assess whether there are outstanding issues requiring resolution before considering whether to hold that the claimant’s testimony is credible as a matter of law. Garrison,
Treichler’s reliance on Benecke v. Barnhart and Vasquez v. Astrue to support his argument is misplaced. In Benecke, we held that the ALJ erred in ruling that the claimant was not credible regarding “the extent of her impairments,”
Because further administrative proceedings are necessary, Treichler has failed to satisfy the second step of the Varney rule. Accordingly, we do not reach the third step of the rule, which arises where the record is fully developed and free from conflicts, making it clear that the ALJ would be required to find the claimant disabled if he credited the claimant’s testimony as true. Indeed, after a comprehensive review of the record, we conclude that this case raises “serious doubt as to whether the claimant is, in fact, disabled within the meaning of the Social Security Act,” Garrison,
Because these circumstances do not justify a departure from the ordinary remand rule, the district court must “remand to the agency for additional investigation or explanation.” Lorion,
V
In sum, because the ALJ erred in failing to provide specific reasons for rejecting Treichler’s testimony regarding the severity of his symptoms, we must reverse the judgment of the district court affirming that portion of the ALJ’s decision. But because the record does not compel a finding of disability, we remand Treichler’s disability application to the district court to remand to the agency for further proceedings.
AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings.
Notes
. The five-step sequential evaluation of disability is set forth at 20 C.F.R. § 404.1520. Under the test:
A claimant must be found disabled if she proves: (1) that she is not presently engaged in a substantial gainful activityU (2) that her disability is severe, and (3) that her impairment meets or equals one of the specific impairments described in the regulations. If the impairment does not meet or equal one of the specific impairments described in the regulations, the claimant can still establish a prima facie case of disability by proving at step four that in addition to the first two requirements, she is not able to perform any work that she has done in the past. Once the claimant establishes a pri-ma facie case, the burden of proof shifts to the agency at step five to demonstrate that the claimant can perform a significant number of other jobs in the national economy. This step-five determination is made on the basis of four factors: the claimant’s residual functional capacity, age, work experience and education.
Hoopai v. Astrue, 499 F.3d 1071, 1074-75 (9th Cir.2007) (internal citations and quotation marks omitted).
. Those restrictions were that Treichler “must change positions every 15 minutes, can occasionally balance, stoop, kneel, crouch, and crawl, can perform unskilled work consisting of simple tasks with simple instructions, should have no more than moderate exposure to unprotected heights, moving machinery, and other workplace hazards, and needs to be in close proximity to a bathroom.”
. The other type of remand authorized by § 405(g) appears in the sixth sentence, and allows the reviewing court to remand “where the Commissioner requests a remand before answering the complaint, or where new, material evidence is adduced that was for good cause not presented before the agency.” Hoa Hong Van,
. The Supreme Court has not defined what “rare circumstances,” Lorion,
. The dissent appears to believe that a court should generally remand for benefits and may remand for further proceedings only if the record is incomplete, such as when the ALJ has not heard critical testimony from a treating physician or if a vocational expert had not considered all relevant testimony. Dissent at 1108, 1110. This is directly contrary to our jurisprudence, which requires remand for further proceedings in all but the rarest cases, see Moisa,
. Our sister circuits are generally in accord with our rule that “the court can order the agency to provide the relief it denied only in the unusual case in which the underlying facts and law are such that the agency has no discretion to act in any manner other than to award or to deny benefits.” Seavey v. Barnhart,
. For instance, the dissent cites Dr. Mullins’s statement in 2004 (just months after Treich-ler's injury) that Treichler "still has considerable pain,” Dissent at 1109, but fails to quote the rest of the sentence, stating that Treichler “is taking 12 to 18 oxcodone a day to good control.11 The dissent cites Dr. McNabb’s statement from 2009, that Treichler still "has a significant amount of pain at times,” Dissent at 1109, but again skips over the second half of the sentence, "although for the most part he is able to do most of his activities” with a lower dosage of pain medications. The dissent cites Dr. McNabb’s statement in 2006 that the pain "was getting somewhat constant,” Dissent at 1109, but ignores the second half of the statement "but the pain has been getting somewhat better.” Later in the same report, Dr. McNabb states that Treich-ler’s "pain level is 3 out of 10 and usually goes away 3 or 4 hours after he takes his medication,” and that Treichler was undergoing vocational rehabilitation and was “going to be doing deskwork, light duty type of activ
The dissent's other citations are equally unpersuasive. The dissent cites to a description of Treichler’s pain as "acute,” Dissent at 1109, but that language comes from a report of Treichler’s scrotal testicular pain after an infection, which was subsequently resolved. The statement by Treichler’s wife that "some days [Treichler] doesn't seem like he can move at all,” Dissent at 1109, is not relevant here, since the district court remanded the case to the ALJ to consider whether there are germane reasons for disregarding the wife’s testimony, and that ruling is not on appeal here. The dissent also cites to reports discussing Treichler's bladder and bowel problems, Dissent at 1109, but all the cited reports state that the bladder incontinence occurs at night, and the bowel problems do not cause incontinence.
. In reaching this conclusion, Benecke did not expressly analyze the statements of the non-treating and non-examining physicians who indicated that the claimant had seriously impaired functioning due to a psychological disorder (somatization disorder) rather than fi-bromyalgia.
. Vasquez determined that the claimant was credible in light of various equitable considerations,
. Each party shall bear its own costs on ' appeal. <•
Concurrence Opinion
concurring in part and dissenting in part:
I agree with the majority that the ALJ erred in discrediting Treichler’s medically determinable pain and symptom testimony based on a boilerplate credibility determination. I part company, however, with the majority’s remand for further proceedings. I would, instead, remand for the award of benefits. I, therefore, dissent from Part IV of the majority opinion.
I.
Under the credit-as-true rule, a reviewing court may “credit evidence that was
First, the ALJ failed to provide “legally sufficient reasons” for rejecting Treichler’s pain and symptom testimony. Id. at 1022. As the majority holds, the ALJ committed legal error in rejecting Treichler’s testimony based on boilerplate. Maj. Op. at 1102-03.
Second, there are “no outstanding issues that must be resolved before a determination of disability can be made.” Garrison,
Third, “it is clear from the record that the ALJ would be required to find [Treich-ler] disabled were [his testimony] credited.” Benecke,
“[Treichler] satisfies all three conditions of the credit-as-true rule and ... a careful review of the record discloses no reason to seriously doubt that [he] is, in fact, disabled. A remand for a calculation and award of benefits is therefore required under our credit-as-true precedents.” Garrison,
II.
The majority, however, concludes that we should not remand for the award of benefits because some evidence in the record contradicts Treichler’s testimony. Maj. Op. at 1107. I am unpersuaded.
Medical records attest to the severity and continuity of Treichler’s pain, even with medication. Treichler’s treating physicians describe his pain as “considerable,” “significant,” “[ajcute,” “chronic,” and “constant.” They diagnose his pain as ongoing: Treichler “still has,” “continues to have,” and will have “significant pain and discomfort” “for a very prolonged period of time.” Medical opinions also confirm that Treichler’s pain is not controlled well by medication: he receives “very little pain relief’ from his medication, and “is not very active because [medication] does not take all of his pain away,” leaving him only “somewhat functional.” According to other sources, “some days [Treichler] doesn’t seem like he can move at all.”
Treichler’s bladder incontinence, fecal incontinence, and catheter use are similarly affirmed by medical evidence in the record. Treating physicians and nurse practitioners diagnosed Treichler with “leakage of urine,” “bladder incontinence ... 2 times a week,” and “bladder problems.” Treating specialists, physicians, and other sources described Treichler as having “significant ... problems with bowel function,” and prescribed self-catheteri-zation “4 times daily.” The majority asserts that this evidence is wanting because it appears alongside other portions of the record that downplay the extent of Treich-ler’s disability. Maj. Op. at 1104-05 & n. 7. But the mere fact that some evidence raises questions about the severity of Treich-ler’s injuries does not cast doubt on the record as a whole, as required by our precedents to justify a remand. Cf. Garrison,
Although evidence from treating physicians and from other sources amply sup
III.
The majority remands for further proceedings to enable the ALJ to make findings concerning conflicting evidence in the record. See Maj. Op. at 1107. But the fact “that there is material in the record upon which the ALJ legitimately could have rejected ... testimony” does not justify remand for further proceedings. Harman,
The majority attempts to justify its remand for further proceedings by contending that the second element of the credit-as-true rule is unmet here. Maj. Op. at 1107. The majority is mistaken. Under the second element of the credit-as-true rule, we consider whether the “record is fully developed” before the ALJ. McCartey v. Massanari,
The majority, instead, holds that the second element of the credit-as-true rule is unmet where the record does not unquestionably establish that a claimant’s testimony is true. See Maj. Op. at 1105. This is improper. Fundamentally, the credit-as-true rule asks whether “taking the claimant’s testimony as true, the ALJ would clearly be required to award benefits.” Lingenfelter,
The majority points to Nguyen v. Chater,
The majority’s dismissal of Benecke is similarly flawed. According to the majority, the claimant’s analogy to Benecke is inapposite because Benecke was an “unusual case” where the record clearly established the defendant was unable to perform any substantial gainful work existing in the national economy. Maj. Op. at 1106-07. However, much like the case at hand, non-examining physicians offered testimony in Benecke suggesting the claimant was not disabled. Benecke,
The majority also contravenes the spirit and purpose of the credit-as-true rule to “ensure that pain testimony [is] carefully assessed” so “that credible claimants’ testimony is accepted the first time around.” Varney,
“The Commissioner, having lost this appeal, should not have another opportunity to show that [Treichler] is not credible any more than [Treichler], had he lost, should have an opportunity for remand and further proceedings to establish his credibility.” Moisa v. Barnhart,
Because I would remand for the calculation and award of benefits, I respectfully dissent from the majority’s remand for further proceedings.
. Treichler worked as a tree trimmer and fell 50 feet from a tree. He suffered massive injuries, including numerous fractures and internal injuries.
. The majority asserts that our review of Treichler’s disabilities need not be searching because "we are considering whether the district court abused its discretion in determining that there are outstanding issues in the record that should be decided by the agency under the ordinary remand rule.” Maj. Op. at 1104-05. We have indicated in the past, however, that in the social security context "the distinction [between de novo and abuse of discretion review] often begins to blur.” Harman,
. According to the majority, there was no substantive evidence contradicting the claimant's disability claim because the court "implicitly held that the conclusions of the non-treating and non-examining physicians did not create a factual issue that required resolution by the agency.” Maj. Op. at 1106-07 n. 8. Though we did note in Benecke that the opinions of non-treating physicians should be given "less weight,” we never stated that such opinions received no weight. Benecke,
. The credit-as-true rule is aimed at mitigating the terrible costs claimants must endure after erroneous credibility assessments by encouraging the AU to weigh such testimony carefully. Varney,