Carmickle v. Ssa ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RONALD CARMICKLE, 
Plaintiff-Appellant, No. 05-36128
v.
 D.C. No.
CV-04-01471-JO
COMMISSIONER, SOCIAL SECURITY
ADMINISTRATION, OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the District of Oregon
Robert E. Jones, Senior District Judge, Presiding
Submitted December 6, 2007*
Portland, Oregon
Filed July 24, 2008
Before: Diarmuid F. O’Scannlain, Susan P. Graber and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge O’Scannlain;
Partial Concurrence and Partial Dissent by Judge Graber
*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
9139
CARMICKLE v. COMMISSIONER, SSA 9143
COUNSEL
Tim Wilborn, Wilborn & Associates, P.C., West Linn, Ore-
gon, filed briefs for the plaintiff-appellant.
9144 CARMICKLE v. COMMISSIONER, SSA
Richard A. Morris, Assistant Regional Counsel, Social Secur-
ity Administration, Office of the General Counsel, Seattle,
Washington, filed a brief for the defendant-appellee; Karin J.
Immergut, United States Attorney, Portland, Oregon, Neil J.
Evans, Assistant United States Attorney, and Michael
McGaughran, Regional Chief Counsel, Region X, Seattle,
Washington, were on the brief.
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether the district court properly
affirmed the Commissioner’s denial of Social Security Dis-
ability Insurance benefits in this case.
I
Carmickle alleges disability and seeks benefits under the
Social Security Act, 42 U.S.C. § 423, due primarily to a back
injury caused by a July 2001 on-the-job accident. In his fif-
ties, Carmickle has an 11th-grade education with some col-
lege classes, and his past work experience includes
construction worker, auto salesperson, construction supervi-
sor, and counter salesperson. A few weeks before his acci-
dent, Carmickle was examined by Dr. Ganjanan Nilaver and
reported a history of neck and back injuries and chronic back
pain. Dr. Nilaver concluded that Carmickle would benefit
from physical therapy, but that he could perform sedentary
activities.
After his work injury, Carmickle went to the emergency
room complaining of lower back pain. He did not mention his
work-related accident. Carmickle was diagnosed with left sci-
atica and mild lumbar degenerative joint disease, but lumbar
disc disease was ruled out. A few months later, he was exam-
CARMICKLE v. COMMISSIONER, SSA 9145
ined by Dr. Kevin Kane, an osteopath. Carmickle told Dr.
Kane that he believed his onset of pain was caused by the
work-related accident. Dr. Kane diagnosed moderate to severe
degenerative disc disease in the lumbar region, but he did not
believe it was related to the on-the-job injury. Dr. Kane noted
pre-existing degenerative lumbar spondylosis and disc dis-
ease, and he recommended physical therapy and provided a
work excuse for two weeks. Dr. Kane noted Carmickle “does
have significant low back disability,” and “it is clear he did
not tolerate return to sedentary or light work.”
A few weeks after Dr. Kane’s examination, Carmickle was
examined by Dr. Victoria Carvalho. Carmickle again reported
the work-related injury and complained of lower-back pain
despite chiropractic treatment and physical therapy. Although
he stated that he was unable to sit or stand for more than five
to ten minutes, Dr. Carvalho noted that Carmickle sat in her
office for at least half an hour. She diagnosed lumbosacral
sprain secondary to the reported work injury and she pre-
scribed Relafen and a moist heating pad. She also recom-
mended neck and back exercises and gave Carmickle a two-
week work excuse.
Carmickle filed a workers’ compensation claim with the
State of Oregon based on the July 2001 accident. In Novem-
ber 2001, two physicians performed a joint independent medi-
cal evaluation in connection with this claim. Both doctors
diagnosed multilevel lumbar degenerative disease and con-
cluded that the lumbar strain was medically stationary and
created “no permanent impairment.” The physicians also
noted that, despite his claims of pain, Carmickle “s[at] com-
fortably during the interview portion of the examination” and
“d[id] not appear to have any difficulty sitting or with any
change of position.”
In December 2001, Dr. Michael Horowitz, an osteopath,
recommended that Carmickle use a “reclinable desk chair
while working.”
9146 CARMICKLE v. COMMISSIONER, SSA
Dr. Mark Patton, also an osteopath, treated Carmickle
between December 2001 and November 2003. In December
2001, Dr. Patton diagnosed an L4-5 disc bulge with the possi-
bility of spinal stenosis. He recommended walking or stretch-
ing every 45-60 minutes and “no prolonged sitting.” Shortly
thereafter, Dr. Patton noted Carmickle’s decreased sensation
in the left foot and diagnosed peripheral neuropathy. Dr. Pat-
ton opined that Carmickle “would be better off in [a] job
where he is up & moving rather than a sit down job.”
In January 2002, Carmickle had an MRI which showed no
spinal stenosis or significant nerve root impairment. Dr. Pat-
ton summarized Carmickle’s condition, stating that the “only
major functional limitation currently is the inability . . . to sit
for prolonged periods without developing numbness of his
foot.” Several months later, he observed localized tenderness
and swelling consistent with chronic muscle strain and recom-
mended that Carmickle have a Relafen injection. Carmickle
declined.
A few months later, Dr. Patton again recommended an
injection after noticing Carmickle’s peripheral extremities
showed signs of chronic peripheral vascular disease and that
Carmickle was still experiencing tenderness. Again, Carm-
ickle declined. Dr. Patton reported that although Relafen “typ-
ically has not been covered” by Carmickle’s insurance, it “has
been the only thing that has provided significant relief without
addiction potential or intolerable side effects.” Dr. Patton fur-
ther opined that Carmickle likely is incapable of returning to
construction work due to his health problems, but a “retrain-
ing program is certainly a viable alternative.” Dr. Patton
agreed with Dr. Horowitz’s recommendation that Carmickle
use a reclinable chair for work.
In addition to his back impairments, Carmickle also alleges
that he suffers from mental impairments. In September 2003,
he complained of worsening memory loss, lethargy, and pos-
sible depression. Dr. Patton reported that Carmickle’s Zung
CARMICKLE v. COMMISSIONER, SSA 9147
profile was normal, but that he displayed a flat affect. At this
same time, Dr. Patton diagnosed tendonitis after an x-ray of
Carmickle’s elbows showed bilateral bone spurs.
Carmickle filed his application for Disability Insurance
benefits in May 2002. In November 2003, Carmickle had a
hearing before an administrative law judge (“ALJ”). Carm-
ickle was represented by counsel and he testified on his own
behalf. Medical Expert (“ME”) Dr. William L. DeBolt, and
Vocational Expert (“VE”) Patricia Ayerza also testified at the
hearing. Lay witness Tom Tucker submitted a statement on
Carmickle’s behalf. After the hearing, the ALJ concluded that
Carmickle does have severe impairments, but that he is not
entitled to disability benefits because he retains the residual
functional capacity (“RFC”) to perform his past relevant work
as a construction supervisor and counter salesperson. The
Appeals Council denied review and adopted the ALJ’s deci-
sion as the final decision of the Commissioner on August 26,
2004. Carmickle sought review in the district court pursuant
to 42 U.S.C. § 405(g), and the district court affirmed the ALJ.
This appeal followed.
II
“The district court properly affirms the Commissioner’s
decision denying benefits if it is supported by substantial evi-
dence and based on the application of correct legal standards.”
Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997) (per
curiam). “Substantial evidence means more than a mere scin-
tilla but less than a preponderance; it is such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.
1995).
A claimant is entitled to Social Security disability benefits
only if he suffers from a “medically determinable physical or
mental impairment” that prevents him from performing his
prior work activities and “any other substantial gainful
9148 CARMICKLE v. COMMISSIONER, SSA
employment that exists in the national economy.” Tackett v.
Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C.
§ 423(d)(2)(A)). The Social Security Administration employs
a five-step sequential analysis to determine disability. Id.Here, Carmickle contends the agency erred in finding him not
disabled because the ALJ erroneously (a) rejected his testi-
mony and the lay witness testimony as not fully credible, (b)
rejected some of the medical evidence, and (c) classified his
prior relevant work as a construction supervisor and counter
salesperson. We address each issue in turn.
A
The ALJ found Carmickle’s testimony “not entirely credi-
ble in light of the treatment record and his daily activities.”
Carmickle had testified that he is in constant pain due to his
back condition and that he cannot sit or stand for more than
15 minutes at a time. He stated that when sitting, he has to
“change positions constantly.” He also stated that his lifting
ability is significantly limited and that he can lift only
between 10 and 20 pounds occasionally. The ALJ concluded
Carmickle’s allegations regarding his condition are inconsis-
tent with (1) his full-time college attendance, (2) his receipt
of unemployment benefits, (3) his minimal pain treatment
regime, and (4) Dr. Patton’s opinion that Carmickle can lift 10
pounds frequently and 20 pounds occasionally. The district
court, addressing only the first and fourth inconsistencies,
affirmed the ALJ’s adverse credibility assessment. In doing
so, however, the district court concluded the “clear and con-
vincing reasons” standard we established in Lester v. Chater,
81 F.3d 821, 834 (9th Cir. 1996)), did not apply, but rather,
that the ALJ need only “ ‘identify what testimony is not credi-
ble and what evidence undermines [Carmickle]’s com-
plaints.’ ”
CARMICKLE v. COMMISSIONER, SSA 9149
1
[1] We have consistently held that where the record
includes objective medical evidence establishing that the
claimant suffers from an impairment that could reasonably
produce the symptoms of which he complains, an adverse
credibility finding must be based on “ ‘clear and convincing
reasons.’ ” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th
Cir. 2007) (quoting Smolen v. Chater, 80 F.3d 1273, 1281
(9th Cir. 1996). The only time this standard does not apply is
when there is affirmative evidence that the claimant is malin-
gering. Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir.
2006); Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595,
599 (9th Cir. 1999).1
[2] Here, the ALJ did not find that Carmickle is malinger-
ing and we see no affirmative evidence of such. Rather, the
district court, relying on Swenson v. Sullivan, 876 F.2d 683,
687 (9th Cir. 1989), concluded that Carmickle’s alleged
symptoms are not “medically related” because he is not alleg-
ing that his symptoms “are somehow more disabling to him
than to others.” As just stated, the clear-and-convincing stan-
dard applies only where objective medical evidence estab-
lishes that the claimant suffers from an impairment that could
reasonably be expected to cause the symptoms of which he
complains. Smolen, 80 F.3d at 1281. Once such an impair-
ment is established, however, the claimant’s reasonably
expected symptoms are deemed “medically related.” In
Smolen, we explained:
1
As we noted in a recent unpublished decision, the statement in Robbins
v. Social Security Administration, 466 F.3d 880, 883 (9th Cir. 2006), sug-
gesting that the ALJ must make a specific finding of malingering before
the clear-and-convincing-reasons standard applies is an anomaly in this
Circuit’s caselaw. Schow v. Astrue, 2008 WL 1696954, *2 (April 8, 2008
9th Cir). In fact, in cases both pre- and post-dating Robbins, we have held
that the clear-and-convincing-reasons standard applies so long as there is
“affirmative evidence suggesting . . . malingering.” Smolen, 80 F.3d at
1283-84; see Lingenfelter, 504 F.3d at 1036 (same).
9150 CARMICKLE v. COMMISSIONER, SSA
The claimant need not produce objective medical
evidence of the [symptom] itself, or the severity
thereof. Nor must the claimant produce objective
medical evidence of the causal relationship between
the medically determinable impairment and the
symptom. By requiring that the medical impairment
“could reasonably be expected to produce” pain or
another symptom, the Cotton test requires only that
the causal relationship be a reasonable inference, not
a medically proven phenomenon.
Id. at 1282 (citations omitted).
In support of its decision that specific testimony from Car-
mickle was required before the clear-and-convincing standard
would apply, the district court relied on our statement in
Swenson that “[i]f a claimant submits objective medical find-
ings of an impairment that would normally produce a given
symptom, but testifies that he experiences the symptom to a
greater degree than would normally be expected, the Secre-
tary may disbelieve that but must make specific findings justi-
fying his decision.” 876 F.2d at 687. This principle remains
good law, but it does not apply here. Swenson addresses only
how the ALJ must treat a claimant’s excess symptom testi-
mony. Id. It does not establish a standard for assessing the
claimant’s testimony generally. And it does not establish the
standard for determining whether a claimant’s alleged symp-
toms are “medically related.” On that point, our Smolen line
of cases controls.
[3] Here, Carmickle has shown that he suffers from a
medically-established back impairment that could reasonably
be expected to produce back pain and reduced mobility. Thus,
his subjective testimony about his back pain can be rejected
only for clear and convincing reasons.
CARMICKLE v. COMMISSIONER, SSA 9151
2
[4] Accordingly, our next task is to determine whether the
ALJ’s adverse credibility finding of Carmickle’s testimony is
supported by substantial evidence under the clear-and-
convincing standard. The ALJ rejected Carmickle’s assertion
that he has to “change positions constantly” when sitting,
finding it inconsistent with Carmickle’s full-time college
attendance. When discussing his school attendance, Carm-
ickle stated that he has trouble sitting through “the classes that
are a little bit longer.” He also indicated that propping his feet
up or leaning forward helps relieve his discomfort. He did not
state, however, that he constantly adjusts his position while
sitting in class. Rather, when pressed by counsel, he admitted
that he can sit for “[a]bout 15 minutes in one particular posi-
tion.” The ALJ included this 15-minute limitation in his RFC
assessment, and on this record, we conclude this interpretation
of the evidence is reasonable and we will not second-guess it.
Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001).2
[5] The ALJ also rejected Carmickle’s testimony that he
can lift only 10 pounds occasionally in favor of Dr. Patton’s
contradictory opinion that he can lift up to 10 pounds fre-
quently. Contradiction with the medical record is a sufficient
basis for rejecting the claimant’s subjective testimony. John-
son v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995). Thus, we
conclude that both of these reasons relied on by the ALJ are
supported by substantial evidence in the record.
2
The ALJ also rejected Carmickle’s assertion that he has memory prob-
lems on the basis that he has successfully completed several full-time col-
lege terms. We do not address this finding because Carmickle failed to
argue this issue with any specificity in his briefing. See Paladin Assocs.,
Inc. v. Mont. Power Co., 328 F.3d 1145, 1164 (9th Cir. 2003) (noting that
we “ordinarily will not consider matters on appeal that are not specifically
and distinctly argued in an appellant’s opening brief”).
9152 CARMICKLE v. COMMISSIONER, SSA
3
[6] The ALJ also gave less weight to Carmickle’s testi-
mony because he received unemployment benefits during the
time he alleges disability and because he took only Ibuprofen
to treat his pain. First, while receipt of unemployment benefits
can undermine a claimant’s alleged inability to work full-
time, see Copeland v. Bowen, 861 F.2d 536, 542 (9th Cir.
1988); accord Schmidt v. Barnhart, 395 F.3d 737, 745-46 (7th
Cir. 2005) (recognizing receipt of unemployment benefits
could impact a claimant’s disability claim), the record here
does not establish whether Carmickle held himself out as
available for full-time or part-time work. Only the former is
inconsistent with his disability allegations. Thus, such basis
for the ALJ’s credibility finding is not supported by substan-
tial evidence.
[7] Second, although a conservative course of treatment can
undermine allegations of debilitating pain, such fact is not a
proper basis for rejecting the claimant’s credibility where the
claimant has a good reason for not seeking more aggressive
treatment. Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007).
Carmickle testified that he does not take other pain medica-
tion because of adverse side effects. In 2003, he also indicated
that he would prefer to take Relafen, which was prescribed by
Dr. Patton, but his insurance does not cover this medication.
Both of these assertions are supported by Dr. Patton’s treat-
ment notes, which state: “Prior auth [sic] is filled out for his
Relafen which typically has not been covered, but, unfortu-
nately, has been the only thing that has provided significant
relief without addiction potential or intolerable side effects.”
On this record, Carmickle’s minimal treatment regime is not
a proper basis for finding him non-credible.
4
[8] Because we conclude that two of the ALJ’s reasons sup-
porting his adverse credibility finding are invalid, we must
CARMICKLE v. COMMISSIONER, SSA 9153
determine whether the ALJ’s reliance on such reasons was
harmless error. See Batson v. Comm’r of Soc. Sec. Admin.,
359 F.3d 1190, 1195-97 (9th Cir. 2004) (applying harmless
error standard where one of the ALJ’s several reasons sup-
porting an adverse credibility finding was held invalid). Our
decision in Batson makes clear that reviewing the ALJ’s cred-
ibility determination where the ALJ provides specific reasons
supporting such is a substantive analysis. So long as there
remains “substantial evidence supporting the ALJ’s conclu-
sions on . . . credibility” and the error “does not negate the
validity of the ALJ’s ultimate [credibility] conclusion,” such
is deemed harmless and does not warrant reversal. Id. at 1197;
see also Stout, 454 F.3d at 1055 (defining harmless error as
such error that is “inconsequential to the ultimate nondisa-
bility determination”).
[9] Contrary to the dissent’s assertion, the relevant inquiry
in this context is not whether the ALJ would have made a dif-
ferent decision absent any error, see Dissent at 9163, it is
whether the ALJ’s decision remains legally valid, despite
such error. In Batson, we concluded that the ALJ erred in
relying on one of several reasons in support of an adverse
credibility determination, but that such error did not affect the
ALJ’s decision, and therefore was harmless, because the
ALJ’s remaining reasoning and ultimate credibility determi-
nation were adequately supported by substantial evidence in
the record. 359 F.3d at 1197. We never considered what the
ALJ would do if directed to reassess credibility on remand—
we focused on whether the error impacted the validity of the
ALJ’s decision. Id. Likewise, in Stout, after surveying our
precedent applying harmless error in social security cases, we
concluded that “in each case, the ALJ’s error . . . was inconse-
quential to the ultimate nondisability determination.” 454
F.3d at 1055 (emphasis added).
Our specific holding in Stout does require the court to con-
sider whether the ALJ would have made a different decision,
but significantly, in that case the ALJ failed to provide any
9154 CARMICKLE v. COMMISSIONER, SSA
reasons for rejecting the evidence at issue. See id. at 1054-55;
see also Robbins, 466 F.3d at 885 (citing Stout and conclud-
ing ALJ’s failure to consider lay testimony was not harmless
error). There was simply nothing in the record for the court
to review to determine whether the ALJ’s decision was ade-
quately supported. Here, however, as in Batson, the ALJ con-
sidered Carmickle’s testimony and provided specific reasons
for finding him less than fully credible. Thus, there is a basis
for the court to review the ALJ’s decision, and the analysis set
forth in Batson, rather than Stout, controls.3 And as just dis-
cussed, in Batson we focused on the validity of the ALJ’s
underlying decision, and not necessarily on whether the ALJ
would come out differently if the case were remanded after
error was identified by the court.4
3
The dissent contends that we are erroneously adopting the dissenting
view expressed in Stout and Robbins. See Dissent at 9165. Such allegation,
however, mischaracterizes the disagreement in this case and misunder-
stands our caselaw. The disagreement here is in how to interpret our deci-
sion in Batson, which established the harmless error standard in cases
where the ALJ provides specific reasons supporting its credibility determi-
nation. As explained, Stout and Robbins purportedly extended Batson and
created a harmless error standard applicable where the ALJ fails to make
a reasoned credibility determination. Such cases did not, however, over-
rule what we said in Batson, nor could they. And while it is true the dis-
senting view in Stout and Robbins disagreed with such extension, see
Robbins, 466 F.3d at 889 (O’Scannlain, J., dissenting) (“In Batson . . . we
simply asked whether there remained ‘substantial evidence supporting the
ALJ’s decision,’ or whether the error in any way ‘negated[d] the validity
of the ALJ’s ultimate conclusion.’ A similar analysis would have been
proper in this case.”) (quoting Batson, 359 F.3d at 1197) (internal citation
omitted), it is not this view that we adopt today, but rather an interpreta-
tion of Batson itself that is based solely on the language we used therein.
4
The dissent also relies on the statement in Stout asserting that the error
in Batson was harmless because it “did not materially impact [the ALJ’s]
decision.” Dissent at 9163 (quoting Stout, 454 F.3d at 1055) (emphasis
added). For the reasons previously discussed, we conclude that Batson’s
“materiality” analysis considers whether the ALJ’s underlying decision
remains supported, in spite of any error, and not whether the ALJ would
necessarily reach the same result on remand. Thus, we also read this state-
ment in Stout as referring to a material impact to the validity of the ALJ’s
decision.
CARMICKLE v. COMMISSIONER, SSA 9155
[10] Here, the ALJ’s decision finding Carmickle less than
fully credible is valid, despite the errors identified above. The
ALJ did not wholly reject Carmickle’s allegations; indeed, the
RFC assessment is largely consistent with his testimony. And,
as discussed above, to the extent the ALJ rejected Carmickle’s
allegations that he needs to change positions constantly when
sitting and that he can lift only 10 pounds occasionally, such
findings were based on substantial evidence in the record.
These findings also support the ALJ’s conclusion that Carm-
ickle’s daily activities are inconsistent with his allegations of
disability. On this record, the ALJ’s error in relying on Carm-
ickle’s receipt of unemployment benefits and on his relatively
conservative pain treatment regime does not “negate the
validity” of the ALJ’s adverse credibility finding. Batson, 359
F.3d at 1197. Contrary to the dissent’s assertion, the remain-
ing valid reasons supporting the ALJ’s determination are not
“relatively minor.” See Dissent at 9167. They are specific
findings related to Carmickle’s ability to perform vocational
functions, and they clearly demonstrate that to the extent the
ALJ found Carmickle’s testimony incredible, the ALJ did not
do so arbitrarily. Rollins, 261 F.3d at 856-57.
5
[11] Carmickle also argues that the ALJ erred in finding lay
witness Tucker’s testimony “not entirely credible.” The ALJ
must consider competent lay testimony but in rejecting such
evidence, he need only provide reasons for doing so that are
“germane to [the] witness.” Greger v. Barnhart, 464 F.3d
968, 972 (9th Cir. 2006) (internal quotation marks omitted).
Tucker, one of Carmickle’s classmates, testified that Carm-
ickle often appears uncomfortable in class and has to lean
back in his chair with his feet propped up on his wheeled
book carrier. Tucker also stated Carmickle has trouble under-
standing at times and sometimes appears confused. The ALJ
rejected this evidence finding it inconsistent with Carmickle’s
successful completion of continuous full-time coursework.
This reason is germane to Tucker. Therefore, we conclude
9156 CARMICKLE v. COMMISSIONER, SSA
that the ALJ had a proper basis on which to reject Tucker’s
testimony.
B
The ALJ is responsible for resolving conflicts in the medi-
cal record. Benton v. Barnhart, 331 F.3d 1030, 1040 (9th Cir.
2003). Those physicians with the most significant clinical
relationship with the claimant are generally entitled to more
weight than those physicians with lesser relationships. Lester,
81 F.3d at 830; 20 C.F.R. §§ 404.1527(d), 416.927(d). As
such, the ALJ may only reject a treating or examining physi-
cian’s uncontradicted medical opinion based on “clear and
convincing reasons.” Lester, 81 F.3d at 830-31. Where such
an opinion is contradicted, however, it may be rejected for
“specific and legitimate reasons that are supported by substan-
tial evidence in the record.” Id. Here, Carmickle asserts the
ALJ erred in rejecting medical evidence from Dr. Patton, Dr.
Kane, Dr. Horowitz, and Dr. Nilaver.
1
Carmickle argues the ALJ erred by failing to include all of
the limitations identified by Dr. Patton, a treating physician,
in assessing Carmickle’s RFC. Dr. Patton submitted three
RFC reports. Though largely consistent, there are some varia-
tions among the reports. The record also includes contradic-
tory opinions from reviewing physicians. In resolving these
conflicts, the ALJ gave Carmickle “the benefit of the doubt”
and assigned great weight to Dr. Patton’s second report, dated
November 2002, because the ME who testified at the hearing
stated that this report included “generous” limitations. The
ALJ also rejected some of the new limitations identified in
Dr. Patton’s third report, dated November 2003, because they
were based on a recent tendonitis diagnosis that “is not
expected to result in any significant work-related functional
limitation for any 12-month period.”
CARMICKLE v. COMMISSIONER, SSA 9157
[12] The ALJ is required to consider all of the limitations
imposed by the claimant’s impairments, even those that are
not severe. Social Security Ruling (“SSR”) 96-8p (1996).
Even though a non-severe “impairment[ ] standing alone may
not significantly limit an individual’s ability to do basic work
activities, it may—when considered with limitations or
restrictions due to other impairments—be critical to the out-
come of a claim.” Id. Dr. Patton opined that Carmickle’s ten-
donitis significantly limits his ability to perform rotary
movement. The ALJ erred in not including this limitation in
his assessment of Carmickle’s RFC.
[13] Carmickle also argues that the ALJ erred by not classi-
fying his carpal tunnel syndrome as a “severe” impairment at
step two of the analysis. However, the only medical evidence
addressing such impairment is a letter dated in 1996 (well
before Carmickle’s alleged onset of disability) stating that the
physician “identified a probably unrelated carpal tunnel syn-
drome and peripheral neuropathy” and notes from a follow-up
visit indicating that “over the past couple of weeks [Carm-
ickle] has had further improvement in his . . . arm symptoms
such that he states that over the past several days he has few,
if any, arm complaints.” Furthermore, the medical record does
not establish any work-related limitations as a result of this
impairment. See Burch v. Barnhart, 400 F.3d 676, 682 (9th
Cir. 2005) (holding that a medical impairment is deemed
“ ‘severe’ . . . when alone or in combination with other medi-
cally determinable physical or mental impairment(s), it signif-
icantly limits an individual’s physical or mental ability to do
basic work activities.” (internal quotation marks omitted).
Thus, we conclude that the ALJ did not err in his assessment
of Carmickle’s carpal tunnel syndrome.
2
[14] Carmickle next argues the ALJ erred in rejecting treat-
ing physician Dr. Kane’s statement that Carmickle cannot tol-
erate sedentary or light work. A few months after Carmickle’s
9158 CARMICKLE v. COMMISSIONER, SSA
disability-triggering accident, Dr. Kane diagnosed “moderate
to severe degenerative disc disease in the lumbar spine” and
gave Carmickle a two-week excuse from work. At that time,
he stated: “I think it is clear that [Carmickle] did not tolerate
return to sedentary or light work.” Two months later, how-
ever, Dr. Kane released Carmickle to return to full-time work.
The ALJ gave Dr. Kane’s opinion “little weight in assessing
the claimant’s long-term functioning.” We conclude the
ALJ’s assessment is supported by substantial evidence.
3
[15] Carmickle also contends the ALJ erred in rejecting Dr.
Horowitz’s recommendation that Carmickle use a “reclinable
desk chair while working.” Based on Dr. Patton’s reports, the
ALJ concluded a reclining chair is not necessary if Carmickle
has a sit/stand option. In his first RFC report, Dr. Patton indi-
cated that Carmickle can sit for two hours in a reclining chair
and 30-45 minutes in a standard chair, but “rotation between
sitting[,] standing[,] walking works best.” In his later reports,
Dr. Patton makes no distinction between the type of chair,
simply indicating that Carmickle can sit for only short
amounts of time and that he needs the option to alternate posi-
tions frequently. The difficulty is that Dr. Patton also stated
that he agreed with Dr. Horowitz’s recommendation. Dr.
Horowitz’s proposal was offered as a recommendation, not an
imperative. Thus, the ALJ’s decision primarily to rely on Dr.
Patton’s specific statements regarding Carmickle’s limita-
tions, rather than his summary agreement with Dr. Horowitz,
was rational, and we will not disturb it. See Allen v. Heckler,
749 F.2d 577, 579 (9th Cir. 1985) (“If the evidence admits of
more than one rational interpretation, we must uphold the
decision of the ALJ.”).
4
[16] Carmickle lastly points to the medical evidence from
Dr. Nilaver, an examining physician. The ALJ gave little
CARMICKLE v. COMMISSIONER, SSA 9159
weight to Dr. Nilaver’s opinion because it was provided
before Carmickle’s alleged onset of disability at a time when
Carmickle was working two jobs that he never indicated hav-
ing trouble performing before his on-the-job injury. Medical
opinions that predate the alleged onset of disability are of lim-
ited relevance. See Fair v. Bowen, 885 F.2d 597, 600 (9th Cir.
1989). This is especially true in cases such as this where dis-
ability is allegedly caused by a discrete event. See SSR 83-20
(1983). As such, we conclude the ALJ did not err in his treat-
ment of Dr. Nilaver’s evidence.
C
The final issue on appeal is whether the ALJ erred at step
four in finding that Carmickle can perform his past relevant
work as a construction supervisor and counter salesperson.
True, because the ALJ erred in excluding some of Carmick-
le’s limitations from the RFC assessment, see supra Part
4.B.1, and thus from the VE hypothetical, the VE’s testimony
“has no evidentiary value.” Russell v. Sullivan, 930 F.2d
1443, 1445 (9th Cir. 1991) (order), abrogated on other
grounds in Sorenson v. Mink, 239 F.3d 1140, 1149 (9th Cir.
2001). However, because Carmickle also asserts the VE mis-
classified his past relevant work and erroneously conflated the
step-four and step-five analyses, we must address this issue.
1
At step four of the sequential analysis, the claimant has the
burden to prove that he cannot perform his prior relevant
work “either as actually performed or as generally performed
in the national economy.” Lewis v. Barnhart, 281 F.3d 1081,
1083 (9th Cir. 2002). Carmickle labeled his construction
supervisor position using various titles, including “job super-
visor,” “construction supervisor (working),” “carpenter,” and
“lead carpenter.” In his work history report, Carmickle
described the job as follows: “Remodeled house — use saws,
tape measures, drew plans, all skills required to remove &
9160 CARMICKLE v. COMMISSIONER, SSA
renew anything & everything in a residential home, super-
vised 3 employees, arranged equip. rentals ect [sic]. Con-
stantly lifting or carrying something from a hammer to heavy
beams or rolls of vinyl & carpet.” He frequently lifted 50
pounds or more, and the heaviest weight he lifted was 100 or
more pounds. He stated that his supervisory duties comprised
20 percent of his time.
The VE conceded that as actually performed by Carmickle,
this was a heavy-duty position. However, she classified the
position as “Superintendent, Construction,” number 182.167-
026 in the Dictionary of Occupational Titles (“DOT”), which
is a purely supervisory position that requires no manual labor.
And based on this classification, the VE concluded that as
normally performed in the national economy, this is a light-
duty position.
Carmickle argues such classification improperly focuses on
the supervisory aspect of his work and that the proper classifi-
cation is “Straw Boss,” which the DOT defines as someone
who “takes the lead in a construction or laboring crew.” The
exertional level of this occupation depends on the specific
type of work the crew performs. Thus, because his crew did
carpentry work, which is medium exertion, Carmickle argues
his prior work as a construction supervisor is properly catego-
rized as medium-duty.
[17] The DOT is “the best source for how a job is generally
performed.” Pinto v. Massanari, 249 F.3d 840, 845 (9th Cir.
2001). In classifying prior work, the agency must keep in
mind that every occupation involves various tasks that may
require differing levels of physical exertion. It is error for the
ALJ to classify an occupation “according to the least demand-
ing function.” Valencia v. Heckler, 751 F.2d 1082, 1086 (9th
Cir. 1985). Here, the ALJ did just that. Only 20 percent of
Carmickle’s duties as a construction supervisor involved
supervision. The remainder of his time was spent performing
CARMICKLE v. COMMISSIONER, SSA 9161
manual labor. Yet the VE’s classification, which the ALJ
accepted, was a purely supervisory position.
[18] To the extent the VE, and thereby the ALJ, may have
concluded that the supervisory skills Carmickle gained from
this prior position are transferrable to a purely supervisory
position, this was also error. The step-four analysis is limited
to determining whether the claimant can perform his past rele-
vant work. Id. at 1086-87; 20 C.F.R. §§ 404.1520, 416.920.
Only if the ALJ finds that the claimant can no longer perform
his past work, as properly classified, does the analysis move
to the fifth and final step of determining whether the claimant
can perform any other work that exists in the national econ-
omy. Valencia, 751 F.2d at 1086-87. Here, the ALJ’s deci-
sion, by its own terms, was resolved at step four.
2
Carmickle also argues that the VE erred in classifying his
prior work as a counter salesperson. He described the func-
tions of this job as follows: “Used cash registers, saws, com-
puter, advised customers as to product suggestions . . . .
Occasional lifting of lumber to help customers and stock
shelves, this was varying weights . . . .” Carmickle frequently
lifted less than 10 pounds, and the heaviest weight he lifted
was 100 pounds or more. He had to “stand & walk all day
long.”
Carmickle contends that as described, this position is prop-
erly classified as “Sales Attendant, Building Materials,” DOT
number 299.677-014. The VE, however, failed to specify a
DOT classification, instead generically referring to the posi-
tion as a “counter sales position” or “customer service job.”
The VE further concluded this job was a light-duty position.
[19] The ALJ’s reliance on the VE’s generic classification
was error. “[B]road generic occupational classifications . . .
are insufficient to test whether a claimant can perform past
9162 CARMICKLE v. COMMISSIONER, SSA
relevant work.” Vertigan v. Halter, 260 F.3d 1044, 1051 (9th
Cir. 2001); see also SSR 82-61 (1982) (“Finding that a claim-
ant has the capacity to do past relevant work on the basis of
a generic occupational classification of the work is likely to
be fallacious and unsupportable.”). And not only did the ALJ
rely on a generic classification, he failed to explain his rea-
sons for doing so. At the hearing, the VE simply asserted,
without explanation, that this is a light-duty position. Like-
wise, the ALJ baldly concluded that this position is “classified
as light work and do[es] not require the performance of tasks
precluded by [Carmickle’s] [RFC].” Though there may be
cases where generic classifications are appropriate, or perhaps
even necessary, the ALJ always “has a duty to make the req-
uisite factual findings to support his conclusion” at step four.
Pinto, 249 F.3d at 844. Otherwise, the court has no basis on
which to review the agency’s decision. Id. at 847. Here, the
ALJ failed sufficiently to support his conclusion.
III
For the foregoing reasons, the district court’s decision
affirming the Commissioner’s decision is AFFIRMED IN
PART and REVERSED IN PART with instructions to the
district court to REMAND this case to the Commissioner for
further proceedings. On remand, the ALJ is directed to reas-
sess Carmickle’s RFC, including all of his relevant limita-
tions. The ALJ is further directed to reassess the step-four
conclusion in light of Carmickle’s complete RFC and this
opinion, and if necessary, proceed to step five.
GRABER, Circuit Judge, concurring in part and dissenting in
part:
I concur in the majority opinion with one exception. I dis-
sent from the majority’s harmless error analysis of the admin-
CARMICKLE v. COMMISSIONER, SSA 9163
istrative law judge’s (“ALJ”) adverse credibility finding with
respect to Carmickle.5 Maj. Op. at 9148-55.
A. The Majority Applies an Incorrect Harmless Error
Test.
An ALJ’s error is harmless if, in light of the record-
supported reasons supporting the adverse credibility finding,
we can conclude that the ALJ’s error did not “affect[ ] the
ALJ’s conclusion.” Batson v. Comm’r of Soc. Sec. Admin.,
359 F.3d 1190, 1197 (9th Cir. 2004); see also Stout v.
Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1054-55 (9th Cir.
2006) (describing the harmless error test as whether “the
ALJ’s error did not materially impact his decision”); Robbins
v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006) (hold-
ing that an error is harmless if it was “inconsequential to the
ultimate nondisability determination” (internal quotation
marks omitted)).
The majority disagrees. Instead, the majority holds that “the
relevant inquiry . . . is whether the ALJ’s decision remains
legally valid, despite such error.” Maj. Op. at 9153. “So long
as there remains ‘substantial evidence supporting the ALJ’s
conclusions on . . . credibility’ and the error ‘does not negate
the validity of the ALJ’s ultimate [credibility] conclusion,’
such is deemed harmless and does not warrant reversal.” Maj.
Op. at 9153 (ellipsis and alteration in original) (quoting Bat-
son, 359 F.3d at 1197). By quoting selectively from Batson,
the majority eviscerates harmless error review and creates an
intra-circuit conflict with Batson, Stout, and Robbins.
Until today, Batson was the only case in which we have
5
I agree with the majority that we must reverse and remand because the
ALJ erred by not including Carmickle’s tendonitis limitation in the ALJ’s
assessment of Carmickle’s residual functional capacity. Maj. Op. at 9156-
57. I also agree with the majority that we must affirm on the remainder
of the issues.
9164 CARMICKLE v. COMMISSIONER, SSA
held that an ALJ’s error concerning an adverse credibility
finding was harmless. There, the ALJ gave numerous record-
supported reasons for finding the claimant not credible, but
also made one assumption that was not supported by the
record. Batson, 359 F.3d at 1196-97. In particular, “Batson
had said in questionnaires about his daily living activities that
he watched six to ten hours of television a day,” and the ALJ
erroneously assumed that Batson was sitting continuously
while watching television (instead of standing, reclining, or
changing positions frequently). Id. Examining the full record,
we held that the ALJ’s one minor error was harmless: “In
light of the substantial evidence supporting the ALJ’s conclu-
sions on Batson’s credibility, we do not think that the ALJ’s
assumption about Batson sitting while watching television
affected the ALJ’s conclusion or requires remand.” Id. at
1197.
As the quoted sentence makes clear, we did not ask
whether “the ALJ’s remaining reasoning and ultimate credi-
bility determination were adequately supported by substantial
evidence in the record.” Maj. Op. at 9153 (emphasis omitted)
(citing Batson, 359 F.3d at 1197). Instead, we asked whether,
“[i]n light of the substantial evidence supporting the ALJ’s
conclusions on Batson’s credibility,” the ALJ’s assumption
about sitting while watching television “affected the ALJ’s
conclusion.” Batson, 359 F.3d at 1197 (emphases added). The
fact that some of the ALJ’s reasons were supported by sub-
stantial evidence was a necessary pre-condition for reaching
the harmless error test; it was not the test itself. Indeed, if sub-
stantial evidence supporting the ALJ’s conclusion were suffi-
cient, there would have been little need for the two full
paragraphs discussing whether the ALJ’s error was harmless.
Until today, we have had no difficulty understanding Bat-
son’s holding. In Stout, 454 F.3d at 1054-55, we summarized
Batson’s holding this way: “[W]e concluded that any error the
ALJ committed in assuming [Batson was sitting while watch-
ing television] was harmless[,] . . . because the ALJ provided
CARMICKLE v. COMMISSIONER, SSA 9165
numerous other record-supported reasons for discrediting the
claimant’s testimony, which allowed our review to determine
the ALJ’s error did not materially impact his decision.”
(Emphasis added.) In turn, we noted in Robbins, 466 F.3d at
885, that “we explained [in Stout, 454 F.3d at 1055-56] that
we have only found harmless error when it was clear from the
record that an ALJ’s error was ‘inconsequential to the ulti-
mate nondisability determination.’ ” (Emphasis added.) See
also Ford v. Astrue, 518 F.3d 979, 983 (8th Cir. 2008) (citing
Batson and holding that, “[a]fter careful consideration of the
record in this case, we cannot say that it weighs so heavily
against Ms. Ford’s credibility that the ALJ would necessarily
have disbelieved her absent the erroneous inferences that he
drew from the record” (emphasis added)).
In both Robbins and Stout, we accurately described and
applied the harmless error test over a dissent that would have
applied a less stringent test. See Stout, 454 F.3d at 1057(O’Scannlain, J., dissenting); Robbins, 466 F.3d at 889-93
(O’Scannlain, J., dissenting). In Robbins, Judge O’Scannlain,
in dissent, would have preferred that the panel apply the very
test now embraced by the majority, based on the same mis-
reading of Batson. Compare id. at 889 (O’Scannlain, J., dis-
senting) (“In Batson, for example, we simply asked whether
there remained ‘substantial evidence supporting the ALJ’s
decision,’ or whether the error in any way ‘negate[d] the
validity of the ALJ’s ultimate conclusion.’ A similar analysis
would have been proper in this case.” (citations omitted)
(alteration in original)) with Maj. Op. at 9152-53 (“So long as
there remains ‘substantial evidence supporting the ALJ’s con-
clusions on . . . credibility’ and the error ‘does not negate the
validity of the ALJ’s ultimate [credibility] conclusion,’ such
is deemed harmless and does not warrant reversal.” (ellipsis
and alteration in original) (quoting Batson, 359 F.3d at
1197)). Unless and until one of our precedents is overruled or
becomes clearly irreconcilable with a Supreme Court holding,
however, it is binding on a three-judge panel, even if we dis-
agree with it. Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.
9166 CARMICKLE v. COMMISSIONER, SSA
2003) (en banc). Contrary to the opinion’s attempted justifica-
tion, Maj. Op. at 9151 n.2, the majority here adopts the Stout
and Robbins dissents’ interpretation of Batson, which the
Stout and Robbins majorities cogently rejected.
B. The ALJ’s Errors Are Not Harmless Under the Correct
Test.
The ALJ gave four reasons supporting his adverse credibil-
ity finding: (1) Carmickle testified that he must “ ‘change
positions constantly’ ” but, “when pressed by counsel, he
admitted that he can sit for ‘[a]bout 15 minutes in one particu-
lar position’ ”; (2) Carmickle testified that he can lift 10
pounds only occasionally, but his doctor opined that he can
lift up to 10 pounds frequently; (3) Carmickle alleges that he
is disabled, but he received unemployment benefits; and (4)
Carmickle alleges that he has severe pain, but he took only
Ibuprofen and not other pain medications. Maj. Op. at 9150-
52. I agree with the majority that the ALJ erred because the
last two reasons may not be considered under our precedents.
Maj. Op. at 9152.
Reviewing the record, I cannot say that the ALJ’s errors did
not affect his conclusion that Carmickle’s testimony was not
credible. In Batson, we held that the ALJ’s assumption that
Batson was sitting while watching television was harmless in
light of the “numerous other record-supported reasons for dis-
crediting the claimant’s testimony.” Stout, 454 F.3d at 1055(emphasis added). Here, the errors are not trivial: the ALJ
held against Carmickle the facts that he had received unem-
ployment benefits and that he had declined to take prescrip-
tion pain medications—facts that may not be considered at all
by the ALJ, as the majority properly holds. Additionally, the
“other record-supported reasons for discrediting [Carmick-
le’s] testimony” are neither “numerous” nor particularly com-
pelling. Carmickle testified that he has to change positions
“constantly” but then clarified, when pressed by counsel, that
he could sit for 15 minutes without changing positions. As the
CARMICKLE v. COMMISSIONER, SSA 9167
majority recognizes, the ALJ credited Carmickle’s clarifica-
tion and included the 15-minute limitation in the residual
functional capacity assessment. Maj. Op. at 9151. It is not
apparent that changing positions every 15 minutes, all day
long, necessarily would be perceived or described as some-
thing less than “constant” motion. Carmickle also testified
that he can lift 10 pounds occasionally even though his doctor
found that he could lift 10 pounds frequently. That difference
is significant as a term of art, but is not necessarily a mean-
ingful distinction to a lay person.
In summary, the ALJ erred by considering two factors that
the law prohibits. Because only two, relatively minor record-
supported reasons buttress the ALJ’s conclusion, while two
reasons were wholly improper, I cannot conclude that the
ALJ’s errors did not affect his adverse credibility finding.
Applying the harmless error test mandated by our precedent,
I would therefore hold that the ALJ’s errors were not harm-
less.