Adrian Burrell v. Carolyn W. Colvin ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ADRIAN BURRELL, No. 12-16673
Plaintiff-Appellant,
D.C. No.
v. 2:11-cv-00749-
SRB
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the District of Arizona
Susan R. Bolton, District Judge, Presiding
Argued June 11, 2014
Resubmitted December 19, 2014
San Francisco, California
Filed December 31, 2014
Before: Mary M. Schroeder, Susan P. Graber, and Jay S.
Bybee, Circuit Judges.
Opinion by Judge Graber;
Dissent by Judge Schroeder
2 BURRELL V. COLVIN
SUMMARY*
Social Security
The panel reversed the district court’s decision affirming
the Social Security Commissioner’s denial of Adrian
Burrell’s application for disability insurance benefits pursuant
to the Social Security Act, and remanded the case for further
proceedings.
The panel held that there was not substantial evidence to
support the administrative law judge’s (“ALJ”) rejection of
Burrell’s testimony, or the ALJ’s rejection of the medical
assessment by Burrell’s treating physician. The panel also
held that because it had “serious doubt” as to whether Burrell
was, in fact, disabled pursuant to Garrison v. Colvin,
759 F.3d 995, 1021 (9th Cir. 2014), the district court shall
remand the case to the ALJ for further proceedings, and the
ALJ shall not be required to credit-as-true any evidence.
Judge Schroeder dissented. Judge Schroeder agreed with
the majority that substantial evidence supported neither the
ALJ’s discrediting of Burrell’s testimony nor his rejection of
the treating physician’s medical assessment, but she would
remand for an award of benefits. Judge Schroeder would
hold that the three prerequisites of Garrison are met, would
credit-as-true the discredited evidence, and would not find
that there were serious doubts as to whether Burrell was
disabled within the meaning of the Act.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
BURRELL V. COLVIN 3
COUNSEL
Eric G. Slepian (argued), Slepian Law Office, Phoenix,
Arizona, for Plaintiff-Appellant.
Sarah Van Arsdale Berry (argued), Special Assistant United
States Attorney, Social Security Administration, General
Counsel’s Office, Denver, Colorado; Michael A. Johns,
Assistant United States Attorney, Phoenix, Arizona, for
Defendant-Appellee.
OPINION
GRABER, Circuit Judge:
Claimant Adrian Burrell applied for social security
disability benefits primarily because of debilitating headaches
resulting from neck and back conditions. An administrative
law judge (“ALJ”) found her not disabled, the Appeals
Council denied review, and the district court affirmed the
denial of benefits. We conclude that substantial evidence
supports neither the ALJ’s rejection of Claimant’s testimony
nor his rejection of the medical assessment by Claimant’s
treating physician, Dr. William Riley. Accordingly, we
reverse the district court’s decision. But, because we have
“serious doubt” as to whether Claimant is, in fact, disabled,
Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014), the
district court shall remand the case to the ALJ for further
proceedings on an open record; that is, on remand, we do not
require the ALJ to credit as true Claimant’s testimony, Dr.
Riley’s assessment, or any other evidence.
4 BURRELL V. COLVIN
FACTUAL AND PROCEDURAL HISTORY
Claimant filed an application for benefits, alleging a
disability onset date of December 18, 2007. For years,
Claimant has suffered pain and headaches resulting from
various neck and back conditions, including a tumor near the
cervical spine, disc herniation, degenerative disc conditions,
and a broad-based disc bulge. Medical providers tracked
degenerative disc changes from the early 1990s through 2009,
when she underwent back surgery following a seizure.
Claimant long had suffered from mild tingling in her left
hand. After surgery, she experienced great difficulty gripping
and grasping items with her left hand.
At the hearing before the ALJ, Claimant testified that she
experiences an average of one to two debilitating migraine
headaches per week. When they occur, the headaches require
her to lie down in a dark room for the remainder of the day.
Claimant testified that, because of neck and back pain, she is
able to stand, walk, and sit for limited durations only. She
experiences pain when lifting heavy objects and has trouble
sleeping.
The ALJ issued a written decision concluding that
Claimant is not disabled for purposes of the Social Security
Act. The ALJ concluded that Claimant has “severe”
impairments of “chronic neck and low back pain . . . ;
impaired grip in the left hand; and chronic headaches.” But
she has the residual functional capacity to perform “medium
exertion” with additional limitations that she avoid exposure
to workplace hazards and not operate an automobile. In
reaching that conclusion, the ALJ found Claimant’s testimony
not credible to the extent that it conflicted with the residual
functional capacity, and he rejected the contrary conclusions
BURRELL V. COLVIN 5
of Claimant’s primary care doctor, Dr. Riley. Finally, the
ALJ concluded that Claimant was not disabled because she
can perform her past relevant work as a receptionist and a
manicurist.
Claimant sought review by the Appeals Council. As part
of that review, she submitted additional medical evidence.
The Appeals Council denied review. Claimant filed this
action, and the district court affirmed the denial of benefits in
a written order. Claimant timely appeals.
STANDARDS OF REVIEW
We review de novo the district court’s order affirming a
denial of social security benefits. Hill v. Astrue, 698 F.3d
1153, 1158 (9th Cir. 2012).
When, as here, “the Appeals Council considers new
evidence in deciding whether to review a decision of the ALJ,
that evidence becomes part of the administrative record,
which the district court [and this court] must consider when
reviewing the Commissioner[ of Social Security]’s final
decision for substantial evidence.” Brewes v. Comm’r of Soc.
Sec. Admin., 682 F.3d 1157, 1163 (9th Cir. 2012).
Where, as here, Claimant has presented evidence of an
underlying impairment and the government does not argue
that there is evidence of malingering,1 we review the ALJ’s
1
As discussed below, in Part A-3, one report in the record suggests that
Claimant may have been motivated by secondary gain, that is, an
incidental benefit of an illness. But the government has not argued that
this isolated report equals evidence of malingering for purposes of our
standard of review.
6 BURRELL V. COLVIN
rejection of her testimony for “specific, clear and convincing
reasons.” Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir.
2012). The government disputes that standard of review.
Relying primarily on Bunnell v. Sullivan, 947 F.2d 341 (9th
Cir. 1991) (en banc), the government argues that we review
the ALJ’s decision only for specific reasons and that “clear
and convincing” reasons are not required. We disagree.
In Bunnell, we resolved a longstanding conflict in the
cases about whether a claimant must produce objective
medical evidence to demonstrate the extent of his or her pain.
Id. at 342. As part of our analysis, we concluded that the
ALJ’s reasons for rejecting a claimant’s testimony must be
“specific.” Id. at 345. It is true that the Bunnell court did not
mention “clear and convincing reasons.” But that standard
predated the decision in Bunnell, e.g., Swenson v. Sullivan,
876 F.2d 683, 687 (9th Cir. 1989); Gallant v. Heckler,
753 F.2d 1450, 1455 (9th Cir. 1984), and there is no
indication that Bunnell intended to overrule that precedent.
Indeed, the cases following Bunnell read it as supplementing
the “clear and convincing” standard with the requirement that
the reasons also must be “specific.” E.g., Johnson v. Shalala,
60 F.3d 1428, 1433 (9th Cir. 1995). Our more recent cases
have combined the two standards into the now-familiar
phrase that an ALJ must provide specific, clear, and
convincing reasons. Molina, 674 F.3d at 1112. There is no
conflict in the caselaw, and we reject the government’s
argument that Bunnell excised the “clear and convincing”
requirement. We therefore review the ALJ’s discrediting of
Claimant’s testimony for specific, clear, and convincing
reasons.
Finally, because other doctors’ opinions contradicted the
opinion of Dr. Riley, we review the ALJ’s rejection of Dr.
BURRELL V. COLVIN 7
Riley’s opinion for “specific and legitimate reasons that are
supported by substantial evidence.” Bayliss v. Barnhart,
427 F.3d 1211, 1216 (9th Cir. 2005).
DISCUSSION
Claimant challenges the ALJ’s adverse credibility
determination and his rejection of Dr. Riley’s reports.2 The
parties also dispute the appropriate remedy, in the event that
we conclude that the ALJ erred.
A. Claimant’s Credibility
After stating the residual functional capacity, the ALJ
wrote:
After careful consideration of the evidence,
the undersigned finds that the claimant’s
medically determinable impairments could
reasonably be expected to cause the alleged
symptoms; however, the claimant’s
statements concerning the intensity,
persistence and limiting effects of these
symptoms are not credible to the extent they
are inconsistent with the above residual
functional capacity assessment.
2
Claimant also argues that the ALJ committed legal error by failing to
adhere to Social Security Ruling 96-8p when setting forth her residual
functional capacity. Claimant waived that argument by failing to raise it
before the district court. O’Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056,
1063 n.3 (9th Cir. 2007). In any event, we have considered the argument
and found it unpersuasive.
8 BURRELL V. COLVIN
The ALJ’s decision then drifts into a discussion of the
medical evidence; it provides no reasons for the credibility
determination. Sifting through the ALJ’s decision, the
government finds three reasons for the adverse credibility
determination, albeit dispersed in seemingly random places
in the decision. We address those reasons in turn.
1. Daily Activities Inconsistent with Testimony
The ALJ noted, three single-spaced pages after the
adverse credibility determination, in the midst of an analysis
of medical sources, that “the claimant’s self-reports to the
physical therapist do not indicate the degree of limitation
suggested by the medical source statement, and indeed is
inconsistent with the claimant’s testimony at [the] hearing.”
Inconsistencies between a claimant’s testimony and the
claimant’s reported activities provide a valid reason for an
adverse credibility determination. Light v. Soc. Sec. Admin.,
119 F.3d 789, 792 (9th Cir. 1997).
But the ALJ did not elaborate on which daily activities
conflicted with which part of Claimant’s testimony. The only
mention found in the ALJ’s decision is five pages earlier,
when summarizing Claimant’s testimony: “Although she
testified she was unable to use a vacuum, she reported to the
physical therapist that she did use the vacuum and was able
to perform most housekeeping activities.”3 As to vacuuming,
Claimant stated at the hearing in December 2009:
3
The latter part of this finding—concerning most household chores—is
plainly consistent with Claimant’s testimony. She testified at the hearing,
consistent with her reports to the physical therapist, that she can perform
most household chores.
BURRELL V. COLVIN 9
Vacuuming and I don’t get along well at
this point. It hurts to do the stretching and
pulling. I occasionally sweep with a broom
and dustpan, wipe down the kitchen counters,
sometimes load the dishwasher. It takes
longer because I have to use my right hand to
do it.
The ALJ cited six worksheets that asked Claimant whether
her impairments affected her ability to do chores such as,
specifically, vacuuming. In those worksheets, which span the
period March 2009 to June 2009, Claimant checked the box
“Yes, Limited a little” five times, and she once checked the
box for “Yes, Limited a lot.” Also in June 2009, the physical
therapist reported, without elaboration, that Claimant “can
push the vacuum.”
Substantial evidence does not support the ALJ’s
determination that there is a conflict concerning Claimant’s
ability to vacuum. Claimant consistently reported to the
physical therapist that she had trouble vacuuming, which is
entirely consistent with her testimony at the hearing that
stretching and pulling, which are required to vacuum, cause
her pain. Claimant did not testify that she never could
vacuum; she stated that vacuuming was difficult for her “at
this point.” (Emphasis added.)
Perhaps recognizing the flaw in the ALJ’s reasoning
about vacuuming, the government declines to mention
vacuuming. Instead, the government identifies other alleged
inconsistencies between Claimant’s hearing testimony and
her reported daily activities, such as knitting and lace work.
But the ALJ did not identify those inconsistencies. “We are
constrained to review the reasons the ALJ asserts.” Connett
10 BURRELL V. COLVIN
v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). Our decisions
make clear that we may not take a general finding—an
unspecified conflict between Claimant’s testimony about
daily activities and her reports to doctors—and comb the
administrative record to find specific conflicts. “General
findings are insufficient; rather, the ALJ must identify what
testimony is not credible and what evidence undermines the
claimant’s complaints.” Lester v. Chater, 81 F.3d 821, 834
(9th Cir. 1995). “To support a lack of credibility finding, the
ALJ was required to point to specific facts in the record . . . .”
Vasquez v. Astrue, 572 F.3d 586, 592 (9th Cir. 2009)
(emphasis added) (internal quotation marks omitted). Here,
the ALJ stated only—in passing and in a different section
than the credibility determination—that Claimant’s self-
reports were inconsistent in some unspecified way with her
testimony at the hearing. That finding is insufficient to meet
“our requirements of specificity.” Connett, 340 F.3d at 873.
2. Conflict with Medical Record
The government argues that Claimant’s testimony that she
has, on average, one or two headaches a week conflicts with
the medical record. As an initial matter, the ALJ never
connected the medical record to Claimant’s testimony about
her headaches. Although the ALJ made findings—discussed
below—concerning Claimant’s treatment for headaches, he
never stated that he rested his adverse credibility
determination on those findings. For that reason alone, we
reject the government’s argument that the history of treatment
for headaches is a specific, clear, and convincing reason to
support the credibility finding.
Moreover, the ALJ’s findings concerning Claimant’s
treatment history are plainly erroneous. The ALJ stated that,
BURRELL V. COLVIN 11
“[d]uring the period under review, there is a gap in treatment
from September 7, 2007, when the claimant was seen to
obtain a work excuse for family medical leave, until
September 2, 2008.” As the government concedes, that
statement is contrary to the record. Claimant was treated on
November 1, 2007, November 8, 2007, November 29, 2007,
and May 19, 2008. The ALJ apparently overlooked
significant medical records when assessing whether the
medical record conflicted with Claimant’s testimony.
The ALJ also stated that “[t]here is no record of primary
care for headaches, neck, or back pain subsequent to October
2008 other than the medical source statement dated
November 9, 2009 and a MRI report dated October 14,
2009.” Yet four different medical records from that period
contain reports of headaches or neck pain.4 See Report dated
April 21, 2009 (although Claimant’s neck pain was much
improved, her migraine headaches continued and were no
better than before her surgery); Report dated May 5, 2009
(ongoing headaches without improvement); Report dated
August 2, 2009 (head pain); Report dated September 23, 2009
(“neck pain no change”).
In sum, the ALJ did not make a specific finding linking a
lack of medical records to Claimant’s testimony about the
intensity of her back, neck, and head pain and, in any event,
the record does not support the ALJ’s findings.
4
Only one of those reports was before the ALJ but, as discussed above,
we review all the evidence submitted to the Appeals Council as if it had
been before the ALJ. Brewes, 682 F.3d at 1163.
12 BURRELL V. COLVIN
3. Secondary Gain
The ALJ stated that, “although the claimant testified she
missed work due to pain, her primary care physician, Dr.
Riley, noted on July 13, 2007, that the claimant ‘does not like
work, has mentioned several times she does not care if they
fire her’ and questioned whether there was an issue of
secondary gain.” The ALJ is correct that Claimant testified
that she missed work due to pain. Dr. Riley’s note stated that
Claimant “apparently does not like work much and has
mentioned to me several times that she does not care if they
fire her, and apparently there is some sort of conflict there.
I am not sure if there is any secondary gain, but she is
certainly not enamored of her job.”
As an initial matter, the fact that Claimant did not like her
job is not, without more, a valid reason to discredit her
testimony about why she missed work. One can dislike (or
like) a job and yet be forced to miss some days from work
because of illness or pain. Rather, the ALJ apparently read
Dr. Riley’s note as questioning whether Claimant was
exaggerating her symptoms in order to miss work that she
disliked.5 Read in that way, substantial evidence arguably
supports the ALJ’s finding. But even if we were to read Dr.
Riley’s note thus, we conclude that this one weak reason is
5
If that is what Dr. Riley meant, he expressed the thought inartfully.
“Malingering” or “exaggerating” is the appropriate term. “Secondary
gain” means “external and incidental advantage derived from an illness,
such as rest, gifts, personal attention, release from responsibility, and
disability benefits.” Dorland’s Illustrated Medical Dictionary 721 (29th
ed.). Secondary gain is not the same as malingering; secondary gain is an
incidental advantage derived from an actual illness. That is, Claimant’s
illnesses and pain allowed her to miss work that she may have disliked.
But that conclusion does not necessarily mean that she was malingering.
BURRELL V. COLVIN 13
insufficient to meet the “specific, clear and convincing”
standard on this record. Molina, 674 F.3d at 1112; see also
Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007)
(holding that “we must consider the entire record as a whole,
weighing both the evidence that supports and the evidence
that detracts from the Commissioner’s conclusion, and may
not affirm simply by isolating a specific quantum of
supporting evidence.” (citation and internal quotation marks
omitted)). Dr. Riley treated Claimant for several years, and
this is the only statement of its type. Moreover, Dr. Riley
merely suggested that perhaps there was an issue of
secondary gain—he did not affirmatively find that Claimant
was exaggerating or malingering. Because the ALJ’s other
reasons—discussed above—are not supported by substantial
evidence, and because this reason is weak on this record, we
conclude that the ALJ erred in discrediting Claimant’s
testimony. See Carmickle v. Comm’r, Soc. Sec. Admin.,
533 F.3d 1155, 1162 (9th Cir. 2008) (holding that, when the
ALJ errs, we must inquire “whether the ALJ’s decision
remains legally valid, despite such error”).
B. Dr. Riley’s Assessment
Dr. Riley, Claimant’s treating physician, found that
Claimant experienced headaches on a regular basis that
“seriously affect[ed]” her ability to function. All other
treating and examining doctors concluded that Claimant
could perform medium exertion work with only minor
limitations. The ALJ adopted the consensus view and
rejected Dr. Riley’s view. Claimant argues that the ALJ
erred. As noted, because Dr. Riley’s opinion was
contradicted, we review the ALJ’s rejection of Dr. Riley’s
opinion for “specific and legitimate reasons that are
14 BURRELL V. COLVIN
supported by substantial evidence.” Bayliss, 427 F.3d at
1216.
The ALJ gave two related reasons for rejecting Dr.
Riley’s assessment. The ALJ reasoned that Dr. Riley’s
opinions “are quite conclusory, providing very little
explanation of the evidence relied on in forming that
opinion.” The ALJ also opined that Dr. Riley’s conclusions
were contrary to the medical evidence and to Dr. Riley’s own
treatment notes.
“[A]n ALJ may discredit treating physicians’ opinions
that are conclusory, brief, and unsupported by the record as
a whole or by objective medical findings.” Batson v. Comm’r
of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004)
(emphasis added) (citation omitted). Indeed, Dr. Riley’s
assessments are of the “check-box” form and contain almost
no detail or explanation. But the record supports Dr. Riley’s
opinions because they are consistent both with Claimant’s
testimony at the hearing and with Dr. Riley’s own extensive
treatment notes which, as discussed above, the ALJ largely
overlooked. The ALJ clearly erred in his assessment of the
medical evidence, overlooking nearly a dozen reports related
to head, neck, and back pain.
The government offers a third reason: It was proper for
the ALJ to reject Dr. Riley’s assessment because Dr. Riley
relied primarily on Claimant’s own subjective reports. “An
ALJ may reject a treating physician’s opinion if it is based to
a large extent on a claimant’s self-reports that have been
properly discounted as incredible.” Tommasetti v. Astrue,
533 F.3d 1035, 1041 (9th Cir. 2008) (internal quotation marks
omitted). The government’s argument fails for two
independent reasons. First, the ALJ never gave this reason
BURRELL V. COLVIN 15
for rejecting Dr. Riley’s opinion. We reiterate that we “are
constrained to review the reasons the ALJ asserts.” Connett,
340 F.3d at 874. Second, as noted above, the ALJ failed to
give specific, clear, and convincing reasons for discrediting
Claimant’s testimony. Because the ALJ did not “properly
discount[]” Claimant’s testimony, this reason fails.
Tommasetti, 533 F.3d at 1041 (emphasis added).
We conclude that, in rejecting Dr. Riley’s assessment, the
ALJ did not give specific and legitimate reasons supported by
substantial evidence.
C. Remedy
Because the ALJ erred, we next address the proper
remedy. On this point, the parties offer starkly differing
views. Claimant asserts that, because the ALJ’s reasons for
discrediting her testimony and Dr. Riley’s assessment are
legally insufficient, we have no choice but to credit as true
both her testimony and Dr. Riley’s assessment and, therefore,
to remand for an award of benefits. The government asserts,
by contrast, that our longstanding rule crediting evidence as
true and remanding for an award of benefits is erroneous and
that we have no choice but to remand on an open record for
further proceedings.
Both parties overreach. We recently clarified the
selection of an appropriate remedy in Garrison v. Colvin,
759 F.3d 995 (9th Cir. 2014). The government is incorrect
that we may not credit evidence as true and remand for an
award of benefits. Id. at 1020 n.25. But Claimant also is
incorrect that we are required to credit evidence as true and
remand for an award of benefits. Id. at 1020–21. Before we
may remand a case to the ALJ with instructions to award
16 BURRELL V. COLVIN
benefits, three requirements must be met: “(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.” Id. at 1020. Even if those requirements are met,
though, we retain “flexibility” in determining the appropriate
remedy. Id. at 1021. In particular, we may remand on an
open record 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.”
Id.
Here, we need not determine whether the three
preliminary requirements are met because, even assuming
that they are, we conclude that the record as a whole creates
serious doubt as to whether Claimant is, in fact, disabled. By
contrast to Garrison, 759 F.3d at 1022, where the government
did not “point to anything in the record that the ALJ
overlooked and explain how that evidence casts into serious
doubt Garrison's claim to be disabled,” evidence in this
record not discussed by the ALJ suggests that Claimant may
not be credible. For example, Claimant’s testimony at the
hearing concerning her ability to knit appears to contradict
the medical record. Similarly, the record suggests that
Claimant’s headaches were secondary to her neck problems,
but her neck problems improved, both objectively and
subjectively, after surgery. Viewing the record as a whole,
we conclude that Claimant may be disabled. But, because the
record also contains cause for serious doubt, we remand with
instructions that the district court remand to the ALJ for
further proceedings on an open record.
BURRELL V. COLVIN 17
CONCLUSION
Substantial evidence supports neither the ALJ’s
discrediting of Claimant’s testimony nor the ALJ’s rejection
of Dr. Riley’s medical assessment. Accordingly, we reverse
the district court’s contrary conclusion. Because the record
creates “serious doubt” as to whether Claimant is, in fact,
disabled, we remand to the district court with instructions to
remand to the ALJ on an open record for further proceedings.
We express no view as to the appropriate result on remand.
REVERSED and REMANDED with instructions.
SCHROEDER, Circuit Judge, dissenting:
I agree with the majority that substantial evidence
supports neither the ALJ’s discrediting of Claimant’s
testimony nor his rejection of treating physician Dr. Riley’s
medical assessment. Yet the majority refuses to credit that
evidence as true.
Our court has laid down three prerequisites for crediting
such evidence as true: first, that the record is fully developed,
and remanding for further proceedings would not be useful;
second, that the ALJ failed to give legally sufficient reasons
for rejecting the evidence; and third, that the discredited
evidence would require the ALJ to find the claimant disabled
if credited as true. Garrison v. Colvin, 759 F.3d 995, 1020
(9th Cir. 2014). The majority assumes, without deciding, that
these prerequisites are satisfied in this case. I would hold
they are satisfied.
18 BURRELL V. COLVIN
The record is fully developed, including the testimony of
a vocational expert. No further proceedings are required
where a vocational expert answers questions about a
hypothetical person with a claimant’s alleged limitations. See
id. at 1021 n.28. The reasons given by the ALJ for rejecting
the evidence are not sufficient, as the majority holds. In my
view, if that evidence is credited as true, Claimant is disabled.
Claimant testified that after back surgery for a tumor, she
had great difficulty gripping and grasping items with her left
hand. Because of back and neck pain, she could not sit,
stand, or walk for long periods, and could lift no more than
ten pounds. Claimant additionally suffered from debilitating
headaches and migraines. Dr. Riley’s reports reflect that the
severity of her hand issues, chronic pain, and headaches
seriously impacted her ability to perform work tasks. If this
evidence is credited as true, there is no way that she could
return to her previous employment as a receptionist and
manicurist. The vocational expert also testified that with
those limitations, Claimant is unable to sustain any other kind
of work.
The majority nevertheless remands the case on an open
record for further consideration. It does so on the basis of its
conclusion that the record raises “serious doubt” as to
whether Claimant is disabled. The majority identifies the
correct legal standard from this court’s recent opinion in
Garrison v. Colvin, 759 F.3d 995 (9th Cir. 2014). Garrison
analyzes our decisions involving the “credit-as-true” rule and
holds that where the prerequisites are satisfied, we remand for
an award of benefits. Id. at 1018–21. The only exception to
the rule is where the record “as a whole” raises “serious doubt
as to whether the claimant is, in fact, disabled within the
meaning of the Social Security Act.” See id. at 1021.
BURRELL V. COLVIN 19
The majority invokes the exception, but without a record
to support it. The majority points to two relatively vague
perceived inconsistencies: first, that the medical record
concerning Claimant’s ability to knit conflicted with her
testimony at the hearing that she could no longer knit; and
second, that the record suggests the headaches Claimant
continued to complain of were secondary to her neck
problems, and should have improved when the neck problems
did. My reading of the record reflects no inconsistency with
respect to either.
The record as a whole reflects a progressive decline in
Claimant’s hand function that is consistent with her testimony
at the hearing that she could no longer knit. In July 2008,
Claimant reported knitting, sewing, and doing lacework for
several hours a day before her surgery, but the medical
records show that her hand function deteriorated after the
March 2009 procedure. In July 2009, Claimant told her
physical therapist she could do some sewing and knitting, but
reported that she was down from knitting 500 stitches to 250.
In September 2009, Claimant reported she was able to knit
only 150–200 stitches at a time. In November 2009,
Claimant stopped physical therapy, with the therapist noting
that her hand function was no longer improving with
treatment. At her hearing in December 2009, Claimant
testified she “attempted to do the things that have always
brought pleasure to me, like my s[e]wing, my knitting, my
crocheting, my lace-making, and I am incapable of doing
those things at this point.” Claimant’s hearing testimony is
consistent with her reports of an overall progressive decline
in her hand condition after surgery.
Claimant’s testimony regarding her ability to knit is no
more inconsistent with the medical record than her testimony
20 BURRELL V. COLVIN
regarding her difficulties vacuuming, which the majority
rejects as a reason for finding Claimant’s testimony not
credible. See Maj. Op. at 8–9. The majority correctly
observes that the physical therapy reports, stating Claimant
could push a vacuum and was limited only “a little” in her
ability to vacuum, were consistent with her later hearing
testimony that she had trouble vacuuming “at this point.”
The majority should have recognized a progressive decline
with respect to knitting as well.
Moreover, both knitting and vacuuming pertain to daily
home activities that provide a questionable basis for
discrediting pain testimony in any event. See Garrison,
759 F.3d at 1016. As we said in Garrison, “[w]e 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.” Id.
As for the headaches, the majority recognizes that the
ALJ erred in the finding that Claimant did not seek consistent
treatment for her headaches after October 2008. Contrary to
the ALJ’s finding, there are at least six reports in the record
of Claimant seeking headache treatment after that date. There
is no medical opinion that the headaches should have
disappeared after surgery. The most we have is a doctor’s
report speculating that Claimant’s headaches were probably
related to her neck issues on account of tension the latter
produced. Yet Claimant’s record of treatment for continuing
headaches after surgery belies that speculation. Her
testimony that her headaches continued after surgery even
though the neck pain improved was consistent with the
BURRELL V. COLVIN 21
medical record. That testimony should not be considered
undermined by a doctor’s guesswork.
I would therefore follow the general rule as laid down in
Garrison and remand the case for an award of benefits.
Instead, the majority requires Claimant to endure another
round of administrative hearings to consider a condition that
came into existence seven years ago.
Accordingly, while I agree with much of the majority’s
reasoning, I must respectfully dissent from its bottom line.
The Claimant should be awarded benefits now.