Lingenfelter v. Astrue ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALLEN G. LINGENFELTER, 
Plaintiff-Appellant,
No. 04-56934
v.
MICHAEL J. ASTRUE,*  D.C. No.
CV-03-00264-RT
Commissioner of Social Security
OPINION
Administration,
Defendant-Appellee.

Appeal from the United States District Court
for the Central District of California
Robert J. Timlin, Senior Judge, Presiding
Argued and Submitted
December 8, 2006—Pasadena, California
Filed October 4, 2007
Before: Robert R. Beezer, Kim McLane Wardlaw, and
Richard A. Paez, Circuit Judges.
Opinion by Judge Paez;
Dissent by Judge Beezer
*Michael J. Astrue is substituted for his predecessor Jo Anne Barnhart
as Commissioner of the Social Security Administration. Fed. R. App. P.
43(c)(2).
13427
13430 LINGENFELTER v. ASTRUE
COUNSEL
Troy D. Monge, Law Offices of Martin Taller, Anaheim, Cal-
ifornia, for plaintiff-appellant Allen G. Lingenfelter.
Peter D. Keisler, Assistant Attorney General, Debra W. Yang,
United States Attorney, Janice L. Walli, Regional Chief
Counsel, Region IX, John C. Cusker, Assistant Regional
Counsel, Social Security Administration, San Francisco, Cali-
fornia, for defendant-appellee Michael J. Astrue, Commis-
sioner of Social Security Administration.
OPINION
PAEZ, Circuit Judge:
Allen Lingenfelter appeals the district court’s judgment
affirming an Administrative Law Judge’s (“ALJ”) decision
denying his applications for social security disability insur-
ance benefits and supplemental security income under Titles
II and XVI of the Social Security Act (“SSA”), 42 U.S.C.
§§ 401-34, 1381-83f. Lingenfelter argues that substantial evi-
dence does not support the ALJ’s decision because the ALJ
improperly rejected his testimony as not credible. We have
LINGENFELTER v. ASTRUE 13431
jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse the
judgment of the district court with instructions to remand to
the ALJ for the calculation and award of appropriate benefits.1
I. Background
A. Procedural History
On August 19, 1997, Lingenfelter filed applications for dis-
ability insurance benefits and supplemental security income,
alleging that he had been disabled and unable to work since
November 8, 1993 due to severe foot and knee impairments.
After his applications were denied initially and upon reconsid-
eration, Lingenfelter requested a hearing before an ALJ. At
the January 4, 2000 hearing, Lingenfelter was represented by
counsel and testified on his own behalf. The ALJ issued a
decision denying Lingenfelter’s applications on March 22,
2000, finding that Lingenfelter suffered from multiple severe
impairments but was not disabled within the meaning of the
SSA. The Appeals Council denied Lingenfelter’s request for
review and adopted the ALJ’s decision as the final decision
of the Commissioner on January 13, 2003.2 Lingenfelter then
filed a complaint for review with the district court, which
issued an order and judgment adopting the report and recom-
mendation of a magistrate judge and affirming the ALJ’s
decision. Lingenfelter timely appealed.
1
Lingenfelter currently receives disability benefits on the basis of a sub-
sequent application, filed on April 18, 2002 and not at issue here, which
the Social Security Administration granted because of a material change
in Lingenfelter’s age. Thus, at issue here is Lingenfelter’s entitlement to
past benefits.
2
In denying Lingenfelter’s request for review, the Appeals Council con-
sidered additional medical evidence that he submitted on December 9,
2002. Under these circumstances, “we consider on appeal both the ALJ’s
decision and the additional material submitted to the Appeals Council.”
Ramirez v. Shalala, 8 F.3d 1449, 1452 (9th Cir. 1993); see also Harman
v. Apfel, 211 F.3d 1172, 1180 (9th Cir. 2000) (“We properly may consider
the additional materials because the Appeals Council addressed them in
the context of denying Appellant’s request for review.”).
13432 LINGENFELTER v. ASTRUE
B. Facts
The parties do not dispute most of the relevant facts. Born
on May 14, 1951, Lingenfelter was 48 years old at the time
of his hearing before the ALJ. He had a high school education
and worked most of his adult life as a construction worker,
warehouse worker, and automobile detailer. He first under-
went surgery on his left knee in 1970. He suffered a work-
related injury of the same knee on November 8, 1993, which
has required multiple surgeries, including two knee arthrosco-
pies in 1994 and 1996. About three years later, in November
1996, Lingenfelter started to experience significant pain in his
left foot as well, and by 1997 he was experiencing severe pain
in both feet.
1. Medical Reports
According to the medical reports in the administrative
record, more than ten doctors, including two primary treating
physicians, had examined or treated Lingenfelter prior to the
hearing. The doctors had diagnosed Lingenfelter with, among
other things, torn lateral and medial meniscae, significant
advanced osteoarthritis, degenerative joint disease, post-polio
syndrome, posterior tibial tendon rupture and tendinitis, and
bilateral advanced arthrosis and planovalgus deformity.
After first injuring his left knee in 1993, Lingenfelter was
examined by Doctors Tony M. Deeths and P.B. Johnson, who
diagnosed osteoarthritis and cartilage damage. In February
1994, orthopaedic surgeon Marshall S. Lewis performed
arthroscopic surgery on Lingenfelter’s knee, which revealed
“torn medial and lateral menisci with osteoarthritis of the left
knee and chondromalacia.” Later in 1994, following reports
of continued swelling and locking of the left knee, Dr. Dili-
beno examined Lingenfelter and found a “large erosive hole
in the lateral tibial plateau extending down (through cartilage)
to bone over the weight bearing area.” He also diagnosed
degenerative joint disease and determined that Lingenfelter
LINGENFELTER v. ASTRUE 13433
would need a total knee replacement. On the basis of similar
findings in a February 1995 examination, Dr. Daniel N.
Ovadia concluded that Lingenfelter could not return to his
usual work and was precluded from any prolonged standing
or walking.
In 1996, Lingenfelter started seeing the first of his two pri-
mary treating physicians, knee specialist Dr. James T. Cail-
louette. From 1996 to 1999, Dr. Caillouette consistently
reported that Lingenfelter was in pain because of his knee and
feet. Following diagnostic arthroscopy, Dr. Caillouette deter-
mined that Lingenfelter’s knee had “complete lateral joint col-
lapse with bone-on-bone in the lateral joint space and
significant osteophyte formation.” He concluded that Lingen-
felter needed a total knee replacement (arthroplasty) because
of the severe pain. Dr. Caillouette also found that both of Lin-
genfelter’s feet had experienced significant atrophy, and pre-
scribed him a wheelchair in 1997 to help alleviate the pain. In
1998, Dr. Caillouette reported that Lingenfelter’s left foot had
completely collapsed. He also determined that Lingenfelter
was “fully disabled from work” until he received appropriate
treatment.
In 1997, Dr. Richard I. Woods examined Lingenfelter on
behalf of the California Workers’ Compensation Appeals
Board. Lingenfelter reported to Dr. Woods that he felt cons-
tant sharp pain in his knee and feet and that “his knee stiffens
up and becomes more painful after sitting for about ten min-
utes or holding the knee in one position for about ten min-
utes.” Lingenfelter also reported that, because of the pain, he
was unable to perform any significant activities. Dr. Woods
agreed with Dr. Caillouette that Lingenfelter needed a total
knee arthroplasty, as radiographs revealed advanced osteo-
arthritis and significant atrophy of the left thigh. He also diag-
nosed degenerative disorder, bilateral tibial tendinitis and rup-
ture, and advanced arthrosis of bilateral mid feet with loss of
plantar arch and collapse of the left mid foot. Dr. Woods con-
cluded that Lingenfelter was limited to semi-sedentary work,
13434 LINGENFELTER v. ASTRUE
and even then would require the use of a cane to help alleviate
pain.
In 1998, Dr. Roger Sung examined Lingenfelter on behalf
of the California Department of Social Services. Dr. Sung
reported that “X-rays of the left knee show severe tricompart-
mental arthritis with significant loss of joint space both medi-
ally and laterally [along with] marked osteophyte formation.”
He also diagnosed “significant left knee osteoarthritis and
bilateral foot planovalgus deformity.” He concluded that Lin-
genfelter was limited in his ability to walk but could sit for a
full day with appropriate breaks. Two other state agency doc-
tors reviewed Lingenfelter’s medical records and made simi-
lar findings, concluding that he could “stand and/or walk at
least two hours in an eight-hour workday; sit about six hours
in an eight-hour workday; [and] had limited use of the left
lower extremity . . . and both feet.”
Also in 1998, Dr. Stuart A. Green examined Lingenfelter
and reviewed his medical records and X-rays for the Workers’
Compensation Appeals Board. Consistent with the medical
record, Dr. Green reported bilateral foot and gait deformities,
absent or weak tibialis posterior function, and knee atrophy,
swelling, and pain. He also agreed that Lingenfelter would
require knee surgery, either immediately or in the near future.
Contrary to the earlier reports, however, he concluded that
Lingenfelter’s lower extremity impairments were the result of
post-polio syndrome, “a late manifestation of poliomyelitis
that affects middle age individuals.” As Dr. Green reported:
What surprised me as I went through the medical
records in this case is that no practitioner seems to
have focused attention on what seems to me a criti-
cal aspect of this applicant’s past history. Mr. Allen
Lingenfelter, at the age of four, had severe poliomy-
elitis. He was in an iron lung for a while, and almost
died.
LINGENFELTER v. ASTRUE 13435
In 1999, Lingenfelter began seeing his second primary
treating physician, foot specialist Dr. Alexander Tischler. Dr.
Tischler diagnosed “severe flatfoot deformity of both feet”
and “arthritis of the tarsometatarsal joint,” and determined
that triple arthrodesis surgery was “a medical necessity.” He
also reported that Lingenfelter had severe knee and foot pain,
which he stated “he could no longer live with.” Dr. Tischler
concluded that Lingenfelter was “totally disabled . . . and is
really unable to do any work that requires any sitting or stand-
ing.” By July 2000, Dr. Tischler reported that Lingenfelter
was “mostly in a wheelchair” and that bilateral casts were the
only treatment that helped to reduce his pain.
Finally, in 2001, after Lingenfelter underwent the recom-
mended triple arthrodesis surgery, Dr. Ronald Smith diag-
nosed “status post hindfoot reconstruction with incomplete
arthrodesis” and “severe pes planus with subtalar instability
and rupture of the posterior tibial tendon.” In his description
of Lingenfelter’s symptoms, Dr. Smith reported that some
pain and swelling were always present, that he elevated his
feet for relief, and that he used a wheelchair and crutches as
aids for walking. Dr. Smith concluded that these “symptoms
are consistent with the examination findings, history, and
radiograph,” and that Lingenfelter’s pain complaints were
objectively reasonable. Dr. Smith at times reported that Lin-
genfelter was temporarily totally disabled, but at other times
reported that he was able to do sedentary work.
2. Lingenfelter’s Testimony
At his hearing before the ALJ in January 2000, Lingenfelter
testified that he had experienced constant pain since 1993,
along with regular cramping, swelling, and fatigue. He
described the pain in his left knee as moderate to severe but
stated that “it’s my feet that hurt so bad,” as if “somebody
[were] sticking a knife in them, and putting electricity in
them, these shocks I get, are just unbelievable.” He further
testified that, because of the pain and fatigue, he could only
13436 LINGENFELTER v. ASTRUE
stand for 20 minutes or sit for 15-20 minutes at a time, and
had to lie down at least three times a day for 30-45 minutes.
He also testified that he needed to keep his legs elevated
every day, even while sitting, and that the pain affected his
ability to sleep.
With regard to treatment, Lingenfelter stated that he took
Vicodin three times a day for pain, as prescribed by Dr.
Tischler, and sought relief from severe pain by soaking his
feet in buckets of ice or a bath tub filled with Epsom salt and
hot water. He testified that he almost always used the cane
that Dr. Caillouette prescribed in 1996, but only sometimes
used crutches because they hurt his arms, and was unable to
use a wheelchair because his insurance refused to approve the
prescription from Dr. Caillouette. At the time of the hearing,
Lingenfelter was also wearing a cast that Dr. Tischler pre-
scribed for his right foot, but had not yet undergone the triple
arthrodesis or total knee arthroplasty. He testified that he
wanted to have the surgeries, which he hoped would alleviate
his pain and swelling, but that his insurance company had not
authorized them.
Lingenfelter testified that pain severely limited his daily
activities. He stated that he had difficulty showering, could
not do yard work or a lot of driving, and usually had other
people shop for him, since he was otherwise able to shop for
only a few things at a time. Likewise, he stated that he had
trouble finishing tasks generally, because he could not sit or
stand for long. He testified that he occasionally watched his
daughter play sports, but that it was difficult for him because
of his knee and feet.
Finally, Lingenfelter testified that he lived in a room that
he rented at a friend’s house and had not worked since his
injury in 1993, except for a nine week period starting in Feb-
ruary 1999. He stated that at that time he took a job washing
tour buses because he had “no money, no income at all.” He
testified that he could not perform that work again and that he
LINGENFELTER v. ASTRUE 13437
only did so then because he “just didn’t have any money” and
“had to do something to live.” He stated that he left the job
after a week because a union job at a warehouse opened up.
He was fired from that job after eight weeks, however,
because he was too slow to do the work adequately. He also
testified that when he returned home from work each day his
“feet were so swollen,” and that he “just couldn’t do it any-
more” because of the pain.
C. ALJ Decision
In denying Lingenfelter’s applications, the ALJ applied the
five-step disability evaluation process set forth in 20 C.F.R.
§ 404.1520. See Lester v. Chater, 81 F.3d 821, 828 n.5 (9th
Cir. 1995) (describing the five-step process). Because Lingen-
felter’s disability insurance lapsed on June 30, 1998, he had
to establish that he was disabled for at least a twelve-month
period between the alleged onset date, November 8, 1993, and
June 30, 1998 (the “relevant time period”).3 See Reddick v.
Chater, 157 F.3d 715, 721 (9th Cir. 1997) (“To qualify for
disability benefits, a claimant must show that a medically
determinable physical or mental impairment prevents her
from engaging in substantial gainful activity and that the
impairment is expected to result in death or to last for a con-
tinuous period of at least twelve months.” (citing 42 U.S.C.
§ 423(d)(1)(A)).
The ALJ found, and the parties do not dispute, that Lingen-
felter passed the hurdles set at steps one and two of the five-
step process, because he was not then engaging in substantial
gainful activity and he suffered from a number of severe
3
As we explained in Smith v. Bowen, however, “reports containing
observations made after the period for disability are relevant to assess the
claimant’s disability.” 849 F.2d 1222, 1225 (9th Cir. 1988). Accordingly,
in reviewing Lingenfelter’s disability claim, we consider also those medi-
cal reports made after June 30, 1998, which were considered by both the
ALJ and the Appeals Council.
13438 LINGENFELTER v. ASTRUE
impairments, including “degenerative joint disease of the left
knee, status post multiple surgeries, and post-polio syndrome.”4
The ALJ also found, however, that Lingenfelter was not auto-
matically presumed disabled at step three, because his condi-
tion did not meet or equal any of the impairments listed in 20
C.F.R., Pt. 4, Subpt. P, App. 1.5 The ALJ’s decision that Lin-
genfelter was not disabled therefore turned on his assessment
in between steps three and four of Lingenfelter’s residual
functional capacity (“RFC”), and application of this RFC
assessment at steps four and five. See 20 C.F.R.
§ 404.1520(4) (“Before we go from step three to step four, we
assess your residual functional capacity. . . . We use this
residual functional capacity assessment at both step four and
step five when we evaluate your claim at these steps.”).
In assessing Lingenfelter’s RFC, the ALJ found that Lin-
genfelter retained the capacity to “lift 20 pounds occasionally
and 10 pounds frequently” and “stand and/or walk at least 2
hours . . . [and] sit 6 hours in an 8-hour workday,” but was
“unable to perform repetitive squatting, kneeling, crawling, or
crouching” and “requir[ed] the use of a cane for standing and
walking . . . [and] the option to stand every 30 minutes for a
period of 1-2 minutes in order to regain circulation and relieve
discomfort.” Although the ALJ recognized that Lingenfelter
testified to additional limitations that would establish a signif-
icantly lower RFC, he rejected this testimony as not “totally
credible.” Specifically, the ALJ found that Lingenfelter’s sub-
jective complaints were only “credible to the extent that he
has required a cane and some accommodation with regard to
4
The ALJ did not address the doctors’ other diagnoses, most notably
failing to mention any of the foot-related diagnoses, such as bilateral tibial
tendon rupture and tendinitis, bilateral advanced arthrosis and planovalgus
deformity, collapse of the left mid foot, and arthritis of the tarsometatarsal
joint.
5
Because we hold that Lingenfelter is entitled to an award of benefits
at step five, we do not address Lingenfelter’s alternate argument that the
ALJ erred at step three by not expressly considering a particular listed
impairment.
LINGENFELTER v. ASTRUE 13439
his complaints of cramping and poor circulation in his lower
extremities.” The ALJ provided two reasons for this adverse
credibility finding: (1) “the consensus of medical opinion in
the record essentially supports a residual functional capacity
for sedentary work”; and (2) Lingenfelter’s nine weeks of
work in 1999 “cast significant doubt upon [his] allegation of
an inability to perform any work at all.”
On the basis of this RFC assessment and the testimony of
a vocational expert, the ALJ found at step four that Lingen-
felter was not capable of performing any of his past relevant
work as a construction worker, warehouse worker, or automo-
bile detailer. The ALJ therefore proceeded to step five, where
he determined that Lingenfelter was not disabled because he
retained the capacity to perform other work that existed in
sufficient numbers in the national economy. In making this
determination, the ALJ posed to a vocational expert both a
hypothetical question based on the RFC that he assigned to
Lingenfelter and hypothetical questions that included the
additional limitations testified to by Lingenfelter. In response,
the vocational expert testified that a person with the RFC
assigned by the ALJ could perform almost a full range of sed-
entary work, but that sufficient jobs did not exist even at the
sedentary level for a person with the additional limitations
testified to by Lingenfelter. The expert testified that if an
employee needed to lie down two or three times a day for up
to 45 minutes, as Lingenfelter testified was necessary, that
“essentially would eliminate any of the positions described,
and in fact any of the positions at the sedentary level.”6
6
The vocational expert also testified, prior to addressing Lingenfelter’s
testimony that he needed to lie down two or three times a day, that the sed-
entary job base available to a person with the RFC assessed by the ALJ
would start to significantly erode if the hypothetical employee needed to
stand for one to two minutes every 15-20 minutes, instead of every 30
minutes as the ALJ found. Further, if the employee had to stand four to
five minutes every 30 minutes, there would be a “good 50 percent ero-
sion” of the job base. Finally, if the employee needed to elevate his legs
beyond waist level, that “would be rather impractical,” and if the
employee had to elevate both legs the “job base could easily be eroded . . .
up to the 80 percent level.”
13440 LINGENFELTER v. ASTRUE
II. Analysis
We review de novo a district court’s judgment upholding
the denial of social security benefits. Reddick, 157 F.3d at
720. “We may set aside a denial of benefits only if it is not
supported by substantial evidence or is based on legal error.”
Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir.
2006). “Substantial evidence” means more than a mere scin-
tilla, but less than a preponderance; it is such relevant evi-
dence as a reasonable person might accept as adequate to
support a conclusion. Id. If the evidence can reasonably sup-
port either affirming or reversing a decision, we may not sub-
stitute our judgment for that of the Commissioner. Id.
However, 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,” Reddick,
157 F.3d at 720, and “may not affirm simply by isolating a
specific quantum of supporting evidence.” Hammock v.
Bowen, 879 F.2d 498, 501 (9th Cir. 1989) (internal quotation
marks omitted).
Lingenfelter argues that substantial evidence does not sup-
port the ALJ’s decision because the ALJ improperly rejected
his testimony as to the severity of his pain and symptoms. We
agree. As we explain below, the ALJ failed to provide clear
and convincing reasons for finding Lingenfelter’s alleged pain
and symptoms not credible, and therefore was required to
include these limitations in his assessment of Lingenfelter’s
RFC. Because the ALJ clearly did not do so, substantial evi-
dence does not support the ALJ’s RFC assessment or step-
five determination that Lingenfelter was not disabled. To the
contrary, the vocational expert’s testimony that sufficient jobs
did not exist for a person with the limitations testified to by
Lingenfelter required a finding at step five that Lingenfelter
was disabled during the relevant time period. Consequently,
further administrative proceedings are unnecessary, and Lin-
genfelter is entitled to an award of appropriate benefits.
LINGENFELTER v. ASTRUE 13441
A. Credibility
To determine whether a claimant’s testimony regarding
subjective pain or symptoms is credible, an ALJ must engage
in a two-step analysis. 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.” Bunnell v.
Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc) (internal
quotation marks omitted). The claimant, however, “need not
show that her impairment could reasonably be expected to
cause the severity of the symptom she has alleged; she need
only show that it could reasonably have caused some degree
of the symptom.” Smolen v. Chater, 80 F.3d 1273, 1282 (9th
Cir. 1996). “Thus, the ALJ may not reject subjective symptom
testimony . . . simply because there is no showing that the
impairment can reasonably produce the degree of symptom
alleged.” Id.; see also Reddick, 157 F.3d at 722 (“[T]he Com-
missioner may not discredit the claimant’s testimony as to the
severity of symptoms merely because they are unsupported by
objective medical evidence.”).
Second, if the claimant meets this first test, and there is no
evidence of malingering, “the ALJ can reject the claimant’s
testimony about the severity of her symptoms only by offer-
ing specific, clear and convincing reasons for doing so.”
Smolen, 80 F.3d at 1281; see also Robbins, 466 F.3d at 883
(“[U]nless an ALJ makes a finding of malingering based on
affirmative evidence thereof, he or she may only find an
applicant not credible by making specific findings as to credi-
bility and stating clear and convincing reasons for each.”).
Here, the Commissioner concedes that Lingenfelter met the
requirement at step one, by providing evidence of underlying
impairments that could reasonably be expected to produce
some degree of the pain and symptoms alleged. Also, at step
two, the ALJ found that there was “no evidence of malinger-
ing.” The ALJ nonetheless found, however, that Lingen-
13442 LINGENFELTER v. ASTRUE
felter’s testimony was credible only to the extent that he
testified that he needed a cane and some accommodation for
his cramping and poor circulation. As a result, the ALJ
excluded from his RFC determination Lingenfelter’s testi-
mony that he could only stand or sit for about 15-20 minutes
at a time, had to lie down for 30-45 minutes at least three
times a day, and needed to keep his legs elevated every day,
because of his constant severe pain.
We must therefore determine whether the ALJ provided
clear and convincing reasons for this adverse credibility find-
ing. As noted, the ALJ provided two reasons for the finding.
First, the ALJ determined that Lingenfelter’s alleged symp-
toms, which would preclude even sedentary work, were con-
trary to a consensus of the medical opinion in the record that
he retained the capacity for such work. Similarly, the ALJ
determined that Lingenfelter’s ability to work for nine weeks
in 1999 was inconsistent with the alleged severity of his
symptoms.
We conclude that these reasons do not constitute clear and
convincing reasons for rejecting Lingenfelter’s subjective
pain and symptom testimony. The ALJ’s first reason provides
no support for the credibility finding, because it is clear from
the record that there was not in fact a consensus of medical
opinion that Lingenfelter, contrary to his alleged pain and lim-
itations, retained the capacity to perform sedentary work. The
ALJ’s second reason, on the other hand, was factually accu-
rate, as Lingenfelter did testify that he worked for a brief
period of time in 1999. This reason in and of itself, however,
is not a sufficient basis for the ALJ’s adverse credibility find-
ing. That Lingenfelter, after the relevant time period during
which he claimed to be disabled and facing difficult economic
circumstances, tried to work for nine weeks and, because of
his impairments, failed, is not a clear and convincing reason
for concluding that his symptoms could not have precluded
him from maintaining employment during the relevant time
period.
LINGENFELTER v. ASTRUE 13443
1. Medical Opinion
[1] Contrary to the ALJ’s determination, there was not a
consensus of medical opinion that Lingenfelter retained the
capacity to perform sedentary work, and therefore this reason
does not support the ALJ’s credibility finding. In finding a
consensus, the ALJ cited to the three state agency physicians,
the two doctors who examined Lingenfelter for the California
Workers’ Compensation Appeals Board, and Dr. Ovadia, who
each made findings consistent with a capacity for sedentary
work.7 Without explanation, however, the ALJ completely
ignored the medical opinions of Lingenfelter’s two primary
treating physicians, who expressly corroborated his alleged
pain and limitations and found him incapable of any work.
As discussed in detail above, knee specialist Dr. Caillouette
treated Lingenfelter for over three years. During this time, Dr.
Caillouette reported that Lingenfelter had severe pain in his
left knee and feet due to his numerous serious physical
impairments, and prescribed him Vicodin, a cane, and a
wheelchair for the pain. Dr. Caillouette expressly concluded
that Lingenfelter was “fully disabled from work” until he
received appropriate treatment: total knee replacement surgery.8
7
Each of these doctors, however, still diagnosed serious medical impair-
ments, and none expressly questioned Lingenfelter’s subjective com-
plaints. See Gallant, 753 F.2d at 1455 (“[T]he record is replete with
objective clinical findings which support and confirm claimant’s allega-
tions of severe and chronic pain. There was no positive evidence that
claimant was not suffering as much pain as he claimed to suffer.”). Indeed,
Dr. Smith, the only doctor to expressly assess Lingenfelter’s subjective
pain and symptoms other than his primary treating physicians, found them
to be objectively reasonable in light of his injuries.
8
Contrary to the dissent, we conclude that Dr. Caillouette’s opinion that
Lingenfelter was “fully disabled from work” is unambiguous. (Emphasis
added). Dr. Caillouette made this determination after finding that Lingen-
felter “is now disabled in both lower extremities” and prescribing Lingen-
felter a wheelchair for the “severe pain in his feet.” We also disagree with
the dissent’s characterization of Dr. Caillouette’s February 1998 statement
13444 LINGENFELTER v. ASTRUE
Similarly, foot specialist Dr. Tischler treated Lingenfelter for
about two years and determined that he was “totally disabled”
and “really unable to do any work that requires any sitting or
standing.” Dr. Tischler also reported that Lingenfelter was
“mostly in a wheelchair” by July 2000, and would be able to
return to sedentary work only if his total knee replacement
and triple arthrodesis surgeries were successful.
[2] In light of these medical opinions, there was clearly no
consensus that Lingenfelter could perform sedentary work.
Rather, Doctors Caillouette and Tischler—the only reporting
physicians who examined Lingenfelter on multiple occasions
and treated his impairments9—expressly reached the opposite
conclusion, that Lingenfelter could not perform any work.
Consequently, the ALJ’s first reason for finding Lingen-
felter’s testimony not credible is unfounded and does not pro-
vide any support for the adverse credibility finding.10
as “conclusory and inadequately supported by clinical findings.” In sup-
port of his opinion, Dr. Caillouette submitted more than 50 pages of medi-
cal reports and clinical findings based on three years of treatment and
objective physical evidence, including X-rays, lab tests, physical examina-
tions, and the diagnostic surgery that Dr. Caillouette himself performed.
9
The doctors upon whom the ALJ relied were either examining or
reviewing physicians, who did not treat Lingenfelter and examined him
either only once or not at all. See Reddick, 157 F.3d at 725 (“The opinions
of treating doctors should be given more weight than the opinions of doc-
tors who do not treat the claimant.”).
10
It was also legal error for the ALJ to discount the opinions of Lingen-
felter’s treating physicians without providing specific and legitimate rea-
sons for doing so. See Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir.
2001) (“The ALJ may not reject the opinion of a treating physician, even
if it is contradicted by the opinions of other doctors, without providing
specific and legitimate reasons supported by substantial evidence in the
record.” (internal quotation marks omitted)). As we recently explained in
more detail in Orn v. Astrue, a treating physician’s opinion must be given
controlling weight if it is well-supported and not inconsistent with the
other substantial evidence in the record. 495 F.3d 625, 631-32 (9th Cir.
2007) (citing 20 C.F.R. § 404.1527(d)(2)); see also id. (holding that an
LINGENFELTER v. ASTRUE 13445
2. Work
[3] To the contrary, the ALJ’s second reason for finding
Lingenfelter’s testimony not credible was factually accurate,
because Lingenfelter testified that he worked for a brief
period of time in 1999. We conclude, however, that this alone
is not a clear and convincing reason for rejecting Lingen-
felter’s subjective pain and symptom testimony.
[4] It does not follow from the fact that a claimant tried to
work for a short period of time and, because of his impair-
ments, failed, that he did not then experience pain and limita-
tions severe enough to preclude him from maintaining
substantial gainful employment. Indeed, we have suggested
that similar evidence that a claimant tried to work and failed
actually supported his allegations of disabling pain. See Fair
v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989) (affirming the
examining physician’s opinion only constitutes substantial evidence if the
physician relied on “independent clinical findings that differ from the find-
ings of the treating physician.” (internal quotation marks omitted)). More-
over, even if a treating physician’s opinion “is no longer entitled to
controlling weight” because there is “substantial evidence in the record”
contradicting the opinion, id. at 632 (internal quotation marks omitted),
the opinion is “still entitled to deference and must be weighed using all the
factors provided in 20 C.F.R. § 404.1527.” Id. (quoting S.S.R. 96-2p at 4
(Cum. Ed. 1996), available at 61 Fed. Reg. 34,490, 34,491 (July 2,
1996)); see also S.S.R. 96-2p at 4, 61 Fed. Reg. at 34,491 (“In many cases,
a treating source’s medical opinion will be entitled to the greatest weight
and should be adopted, even if it does not meet the test for controlling
weight.”).
Of course, an ALJ cannot avoid these requirements simply by not men-
tioning the treating physician’s opinion and making findings contrary to
it. See Embrey v. Bowen, 849 F.2d 418, 422 n.3 (9th Cir. 1988) (“The ALJ
must either accept the opinions of [claimant’s] treating physicians or give
specific and legitimate reasons for rejecting them.”). Here, the ALJ only
briefly mentioned Dr. Caillouette, and did not mention his opinion that
Lingenfelter was fully disabled. The ALJ did not acknowledge Dr.
Tischler at all.
13446 LINGENFELTER v. ASTRUE
ALJ’s finding that the claimant was not credible, but noting
that the ALJ “could easily have relied on other . . . evidence
in the record to reach the opposite conclusion. Fair attempted
to work in 1981, but testified that his pain forced him to
stop.”); see also Rosario v. Sullivan, 875 F. Supp. 142, 146
(E.D.N.Y. 1995) (holding that substantial evidence did not
support the ALJ’s decision that claimant was not disabled, in
part because claimant’s unsuccessful work attempt weighed in
favor of a disability finding); cf. Reddick, 157 F.3d at 722
(“Several courts, including this one, have recognized that dis-
ability claimants should not be penalized for attempting to
lead normal lives in the face of their limitations.”).
This reason is especially unconvincing where, as the ALJ
recognized here, the individual attempted to work “only
because of extreme economic necessity.” Under these circum-
stances, it is at least as likely that the claimant tried to work
in spite of his symptoms, not because they were less severe
than alleged. As Lingenfelter testified, although he was able
to work for a brief period of time, he attempted to do so
because of his dire economic situation caused by almost six
years of unemployment; and, even then, his impairments were
severe enough that they prevented him from maintaining his
employment.
[5] Moreover, Lingenfelter’s failed work attempt did not
even take place during the relevant time period. Lingenfelter
had to prove that he was disabled for at least a twelve-month
period between November 8, 1993 and June 30, 1998. His
work attempt, however, as the ALJ observed, started in Febru-
ary 1999, “years after his injury and surgeries, thus, presum-
ably, only after years of healing.” Thus, here, the work
attempt provides even less support for rejecting Lingenfelter’s
testimony that his subjective symptoms precluded him work-
ing during the relevant time period.
[6] In so concluding, we also find significant that the Social
Security Administration permits recipients of disability bene-
LINGENFELTER v. ASTRUE 13447
fits to work on a trial basis without the trial work period
adversely affecting their disability status. Specifically, when
a recipient works for less than nine months, the Administra-
tion does not consider the trial work period as evidence that
the individual is no longer disabled. See 20 C.F.R.
§ 404.1592; see also Moore v. Comm’r of the Soc. Sec.
Admin., 278 F.3d 920, 924-25 (9th Cir. 2002) (“[T]he SSA’s
regulations provide for a ‘trial work period’ in which a claim-
ant may ‘test your ability to work and still be considered dis-
abled.’ ” (quoting 20 C.F.R. § 404.1592)). By analogy, if
working for almost nine months is not evidence that a disabil-
ity benefit recipient is no longer disabled, then a nine week
unsuccessful work attempt is surely not a clear and convinc-
ing reason for finding that a claimant is not credible regarding
the severity of his impairments.
At least one of our sister circuits has also found the Admin-
istration’s treatment of trial work periods significant in
reviewing the denial of disability benefits. In Parish v. Cali-
fano, the claimant had taken a job within the time period dur-
ing which she needed to establish that she was disabled, but
was asked to resign because “she could not work the hours.”
642 F.2d 188, 193 (6th Cir. 1981). The ALJ “relied heavily
on th[is] fact . . . as substantial evidence that [the claimant]
was not precluded from engaging in any substantial gainful
activity” during the relevant time period. Id. at 192. The Sixth
Circuit, however, looked for guidance in 20 C.F.R.
§ 404.1592: “[S]ervices rendered during the trial work period
are deemed not to have been rendered for the purpose of
determining whether the individual’s disability ceased during
such a period of trial work. It would appear reasonable to
apply the same principle to an attempt to work before filing
an application for benefits.” Id. at 193. As the Sixth Circuit
therefore concluded, the “[a]pproximately 32 weeks of work
over more than eight years during which [claimant] has been
suffering from [her impairment] can be characterized only as
sporadic, not [as] ‘substantial gainful activity’ . . . [, which]
13448 LINGENFELTER v. ASTRUE
implies employment with some degree of regularity.” Id. at
192.
In sum, that Lingenfelter tried to work for nine weeks in
1999 and failed is not a clear and convincing reason for the
ALJ’s finding that Lingenfelter was not credible when he tes-
tified about the pain and symptoms that precluded him from
engaging in substantial gainful employment during the rele-
vant time period.
3. Other Factors
Finally, we consider the ALJ’s proffered reasons in light of
the other factors that we have found relevant in reviewing an
ALJ’s credibility findings, and which the Social Security
Administration also requires that ALJs consider in assessing
credibility. These additional factors include: (1) whether the
claimant engages in daily activities inconsistent with the
alleged symptoms; (2) whether the claimant takes medication
or undergoes other treatment for the symptoms; (3) whether
the claimant fails to follow, without adequate explanation, a
prescribed course of treatment; and (4) whether the alleged
symptoms are consistent with the medical evidence.11 See Rol-
lins, 261 F.3d at 857; Bunnell, 947 F.2d at 346; Fair, 885
F.2d at 602-03; see also S.S.R. 96-7p at 3-4 (Cum. Ed. 1996),
available at 61 Fed. Reg. 34,483, 34,485 (July 2, 1996)
(requiring ALJs to consider “all of the evidence in the case
record” in assessing a claimant’s subjective pain and symp-
tom testimony, including: the “individual’s daily activities”;
the “location, duration, frequency, and intensity of the pain or
symptoms”; “[f]actors that precipitate and aggravate the
symptoms”; the “type, dosage, effectiveness, and side effects”
of any medications; any other treatment or measures used for
relief; functional restrictions; and any other relevant factors).
11
As noted, however, an ALJ cannot reject a claimant’s subjective pain
or symptom testimony simply because the alleged severity of the pain or
symptoms is not supported by objective medical evidence. See Reddick,
157 F.3d at 722.
LINGENFELTER v. ASTRUE 13449
All of these factors weigh in favor of Lingenfelter. Lingen-
felter testified that he engaged in almost no recreational activ-
ities or hobbies and only limited household activities. He
testified that he took prescription pain medicine twice a day,
and the medical record established that he had undergone
extensive additional treatment for his pain and symptoms,
including physical therapy and multiple surgeries. Also,
although Lingenfelter had not yet undergone the triple arth-
rodesis or total knee replacement surgeries at the time of the
hearing, he underwent the triple arthrodesis surgery shortly
after the hearing. Further, Doctors Caillouette and Tischler
confirmed in their reports that Lingenfelter’s insurance
refused to authorize the recommended surgeries at least from
1996 to 2000. Finally, the only doctors who expressly
assessed Lingenfelter’s reported symptoms concluded that
they were reasonable in light of the objective medical evi-
dence.
[7] Thus, considering Lingenfelter’s brief, unsuccessful
work attempt in light of the other factors relevant to his credi-
bility, reinforces our conclusion that the work attempt alone
is not a clear and convincing reason for the ALJ’s finding that
Lingenfelter’s testimony about his pain and physical limita-
tions was not credible.
B. RFC Assessment and Step-Five Determination
[8] Because the ALJ did not provide clear and convincing
reasons for excluding Lingenfelter’s pain and symptoms from
his assessment of Lingenfelter’s RFC, substantial evidence
does not support the assessment. See Robbins, 466 F.3d at 883
(“In determining a claimant’s RFC, . . . ‘[c]areful consider-
ation’ [must] be given to any evidence about symptoms
‘because subjective descriptions may indicate more severe
limitations or restrictions than can be shown by medical evi-
dence alone.’ ” (quoting S.S.R. 96-8p at 5 (Cum. Ed. 1996),
available at 61 Fed. Reg. 34,474, 34,477 (July 2, 1996)). Nor
does substantial evidence support the ALJ’s step-five determi-
13450 LINGENFELTER v. ASTRUE
nation, since it was based on this erroneous RFC assessment.
See Gallant, 753 F.2d at 1456 (“Because . . . the ALJ had no
clear or convincing reasons for rejecting [claimant’s allega-
tions of persistent disabling pain], claimant’s pain should
have formed a part of the ALJ’s question to the expert.”); see
also id. (“A hypothetical question should set out all of the
claimant’s impairments.” (alteration and internal quotation
marks omitted)).
In addition, we will not remand for further proceedings
where, taking the claimant’s testimony as true, the ALJ would
clearly be required to award benefits:
In cases where there are no outstanding issues that
must be resolved before a proper disability determi-
nation can be made, and where it is clear from the
administrative record that the ALJ would be required
to award benefits if the claimant’s . . . testimony
were credited, we will not remand solely to allow the
ALJ to make specific findings regarding that testi-
mony. Rather, we will . . . take that testimony to be
established as true.
Varney v. Sec’y of Health & Human Servs., 859 F.2d 1396,
1401 (9th Cir. 1998). Here, as in Varney, the ALJ posed to the
vocational expert not only a hypothetical question based on
the ALJ’s RFC assessment, but also hypothetical questions
that incorporated the pain and physical limitations testified to
by Lingenfelter. Although the ALJ later decided that these
limitations were not credible, the vocational expert’s testi-
mony establishes that taking Lingenfelter’s testimony as true,
he was disabled. Dispositively, the vocational expert testified
that, if an employee needed to lie down two or three times
each day for up to 45 minutes, as Lingenfelter testified was
necessary, this “essentially would eliminate any of the posi-
tions described, and in fact any of the positions at the seden-
tary level.” Cf. Gallant, 753 F.2d at 1454 (“A man who
cannot walk, stand or sit for over one hour without pain does
LINGENFELTER v. ASTRUE 13451
not have the capacity to do most jobs available in the national
economy.”).
[9] In sum, we conclude that the ALJ did not provide clear
and convincing reasons for his adverse credibility determina-
tion. There was no consensus of medical opinion contrary to
Lingenfelter’s testimony, and his failed work attempt alone is
not a clear and convincing reason for rejecting his testimony,
especially in light of the record as a whole. Further, because
the vocational expert testified that Lingenfelter’s pain and
physical limitations would eliminate any potential employ-
ment, further proceedings are unnecessary, and we reverse the
judgment of the district court with instructions to remand to
the ALJ for the calculation and award of benefits.12
REVERSED AND REMANDED.
BEEZER, Circuit Judge, dissenting:
The opinion of the Court fails to properly analyze the
ALJ’s assessment of Lingenfelter’s credibility. When evaluat-
ing the credibility of a claimant’s testimony, the ALJ has dis-
cretion to resolve conflicts between the opinions of examining
and treating physicians. The ALJ may be justified in discount-
ing the value of Dr. Caillouette’s statements as to Lingen-
felter’s ability to work. Additionally, when the treating
physicians’ statements are ambiguous, we must permit the
ALJ to interpret the statements, rather than adopting, de novo,
our own interpretation.
12
The dissent argues that it is necessary to remand Lingenfelter’s claims
for further proceedings because the ALJ might reject the medical opinions
of Lingenfelter’s primary treating physicians. We disagree. Further pro-
ceedings are unnecessary because the ALJ did not provide a legally suffi-
cient basis for rejecting Lingenfelter’s testimony, which alone establishes
that he is entitled to benefits.
13452 LINGENFELTER v. ASTRUE
I would reverse the judgment of the district court on the
narrow ground that the ALJ and the Appeals Council failed to
set forth specific, legitimate reasons for disregarding the treat-
ing physicians’ medical opinions. Rather than taking Lingen-
felter’s testimony as true and remanding only for an award of
benefits, we should remand to the agency to enter specific
findings regarding the treating physicians’ medical opinions
and to develop a revised credibility determination based on
those findings.
I
When evaluating the medical opinions of treating and
examining physicians, the ALJ has discretion to weigh the
value of each of the various reports, to resolve conflicts in the
reports, and to determine which reports to credit and which to
reject. Although the opinions of treating physicians are given
deference, the ALJ may reject these opinions if, among other
reasons, (1) they are contradicted by the opinion of a non-
treating physician, and (2) the ALJ makes “findings setting
forth specific, legitimate reasons for doing so that are based
on substantial evidence in the record.” Orn v. Astrue, ___
F.3d ___, No. 05-16181, 2007 WL 2034287, at *5 (9th Cir.
July 16, 2007); Thomas, 278 F.3d at 957. When an examining
physician provides independent clinical findings that differ
from the findings of the treating physician, such findings are
themselves “substantial evidence.” Orn, 2007 WL 2034287,
at *5; Thomas, 278 F.3d at 957; Andrews v. Shalala, 53 F.3d
1035, 1041 (9th Cir. 1995). Under these circumstances, “it is
then solely the province of the ALJ to resolve the conflict”
and to decide which medical opinions to credit. Andrews, 53
F.3d at 1041; see also Morgan v. Comm. of Soc. Sec. Admin.,
169 F.3d 595, 601 (9th Cir. 1999) (“Where medical reports
are inconclusive, ‘questions of credibility and resolution of
conflicts in the testimony are functions solely of the [Com-
missioner].’ ” (citing Sample v. Schweiker, 694 F.2d 639, 642
(9th Cir. 1982))). Additional factors relevant to evaluating any
medical opinion include the amount of relevant evidence that
LINGENFELTER v. ASTRUE 13453
supports the opinion, the quality of the explanation provided
in the opinion, and the consistency of the medical opinion
with the record as a whole. Orn, 2007 WL 2034287, at *4.
We defer to an ALJ’s rational interpretation of conflicting
evidence even in the context of credibility determinations,
where the more rigorous “clear and convincing reasons” stan-
dard applies to the broader reasons that the ALJ is required to
provide for disbelieving a claimant’s subjective testimony.1
See Burch, 400 F.3d at 680-81 (stating, in a case where the
ALJ interpreted evidence in the context of making a credibil-
ity determination, “[w]e must uphold the ALJ’s decision
where the evidence is susceptible to more than one rational
interpretation”); Johnson v. Shalala, 60 F.3d 1428, 1434 (9th
Cir. 1995) (“We will not reverse credibility determinations of
an ALJ based on contradictory or ambiguous evidence.”).
In this case the medical evidence is contradictory, but
weighs in favor of Lingenfelter’s ability to perform sedentary
work. On the one hand, a series of examining physicians
found at various times throughout the insured period, based
on thorough and independent clinical findings, that Lingen-
felter was capable of performing sedentary work.2 On the
1
The “clear and convincing reasons” standard applies to the reasons the
ALJ must provide for disbelieving the credibility of the claimant’s testi-
mony. See Morgan, 169 F.3d at 599. Here, these reasons include the sig-
nificant weight of the medical opinion in this case, which, as discussed in
the subsequent footnote, contradicts Lingenfelter’s testimony that he must
lie down frequently every day and elevate and ice his feet repeatedly dur-
ing the day. The “specific, legitimate reasons” standard applies to the rea-
sons the ALJ must give for disregarding the opinions of treating
physicians, such as Dr. Caillouette and Dr. Tischler, when determining
what the weight of the medical opinion says in a particular case.
2
In February 1995, Dr. Ovadia stated under “work restrictions” that Lin-
genfelter should be precluded only from prolonged standing and walking,
running or jumping. In April 1997, Dr. Woods stated that Lingenfelter was
limited to “semi-sedentary work.” In February 1998, Dr. Sung found that
Lingenfelter had the capacity to sit for a full day, walk around the office,
13454 LINGENFELTER v. ASTRUE
other hand, the only medical evidence stating that Lingen-
felter is fully disabled from all types of work comes from Lin-
genfelter’s two treating physicians, Dr. Caillouette and Dr.
Tischler. These physicians’ opinions are not decisive, and Dr.
Caillouette’s opinion is ambiguous and inadequately sup-
ported by clinical findings, as discussed below. Given the
overall weight of the evidence, the ALJ would be within his
discretion to credit the medical opinions of the four examin-
ing physicians while discrediting or rejecting the conclusions
of Drs. Caillouette and Tischler.
II
Lingenfelter’s first treating physician, Dr. Caillouette,
stated in February 1998 that Lingenfelter was “fully disabled
from work.” The opinion of the Court interprets this to mean
“fully disabled from all types of work,” rather than “fully dis-
abled from his work as a heavy laborer.” The exact meaning
of Dr. Caillouette’s statement is ambiguous, however, and the
statement may not be inconsistent with the examining physi-
cians’ opinions stating that Lingenfelter was capable of seden-
tary work. As such, it is within the discretion of the ALJ to
interpret the statement and resolve the ambiguity.
On September 4, 1996, Dr. Caillouette noted that “Lingen-
felter essentially works as a heavy laborer,” and concluded
that he had “a complete loss of pre-injury work capacity.”
Lingenfelter’s pre-injury work as a heavy laborer included
carrying up to 100 pounds, and carrying 50 to 75 pounds on
and lift up to 10 pounds frequently. In March 1998, Dr. Green conducted
a thorough examination of Lingenfelter’s medical record and performed a
physical exam, and agreed with Dr. Ovadia’s opinion of the extent of Lin-
genfelter’s disability. In addition, a non-examining physician, Dr. Mebane,
concluded after a thorough review of Lingenfelter’s medical record that
Lingenfelter could sit about 6 hours in an 8-hour workday, stand or walk
for at least two hours in an 8-hour workday, and lift up to 10 pounds fre-
quently.
LINGENFELTER v. ASTRUE 13455
a relatively frequent basis. Dr. Caillouette stated that same
day that Lingenfelter was “temporarily disabled from heavy
work as a laborer, and I do not anticipate his disability status
changing until he has undergone further surgery.” On Novem-
ber 15, 1996, Dr. Caillouette wrote that Lingenfelter “will
either need an osteotomy of the leg or total knee arthoplasty
in the near future in order to restore him to his ability to
work.” Both these procedures require surgery. Given that this
statement comes only two months after the report stating that
Lingenfelter will be disabled from heavy work as a laborer
until he has surgery, it would be reasonable to conclude that
Dr. Caillouette’s reference to Lingenfelter’s “ability to work”
here means his ability to work as a heavy laborer.
On January 14, 1998, Dr. Caillouette stated that Lingen-
felter was “still temporarily disabled from work.” The word
“still” connotes a continuation of a certain level of disability,
rather than an increase in a patient’s level of disability. There
is nothing in the record indicating any determination by Dr.
Caillouette between November 1996 and January 1998 that
Lingenfelter was disabled from all work, and it would be
unusual for a physician to make such a significant change in
a patient’s disability assessment without any written record of
the change, and without any clinical findings to support the
change. It would be reasonable to infer that “still temporarily
disabled from work” refers back to Dr. Caillouette’s 1996
statements of disability, the only other references in the record
of Dr. Caillouette’s assessment of Lingenfelter’s ability to
work. This inference is supported by the fact that Dr. Caillou-
ette previously used the general term “ability to work” to
likely mean “ability to work as a heavy laborer.” Given this
context, the February 1998 statement “fully disabled from
work” (coming less than a month after the January 14 state-
ment) is, at best, ambiguous. It could reasonably be read as
meaning “fully disabled from work as a heavy laborer” or
“fully disabled from all work.”3
3
Other facts in the record support the opinion of the Court’s conclusion
that Dr. Caillouette believed Lingenfelter to be disabled from all types of
13456 LINGENFELTER v. ASTRUE
The ambiguity in Dr. Caillouette’s February 1998 statement
requires us to remand the case to the agency for an appropri-
ate interpretation of the statement. If the interpretation of Dr.
Caillouette’s statement would affect the ALJ’s appraisal of
Lingenfelter’s credibility, we should allow the ALJ to further
develop the record. See Tonapetyan v. Halter, 242 F.3d 1144,
1150 (9th Cir. 2001); Smolen v. Chater, 80 F.3d 1273, 1288
(9th Cir. 1996). If the ALJ makes the same credibility finding
regardless of the interpretation of Dr. Caillouette’s ambiguous
statement, then additional development of the record would
be unnecessary. In either case, we must give deference to the
ALJ’s interpretation of the ambiguous evidence, even in the
context of credibility determinations, see Burch v. Barnhart,
400 F.3d 676, 680-81 (9th Cir. 2005) (“[W]e must uphold the
ALJ’s decision where the evidence is susceptible to more than
one rational interpretation.”), and we should not seek to fill
the fact-finding role of the ALJ by developing, de novo, our
own interpretation of Dr. Caillouette’s ambiguous statement,
see INS v. Ventura, 537 U.S. 12, 16 (2002) (per curiam) (“A
court of appeals ‘is not generally empowered to conduct a de
novo inquiry into the matter being reviewed and to reach its
own conclusions based on such an inquiry.’ ”) (citation omit-
ted).
III
Even if the ALJ determines that Dr. Caillouette did find
Lingenfelter completely disabled from all work in February
1998, the ALJ is not obligated to consider the doctor’s state-
work by 1998. Lingenfelter revisited Dr. Caillouette with a “new problem”
in November 1996—the “sudden onset of right foot pain.” Dr. Caillouette
stated that Lingenfelter had “severe pain” in his feet on two occasions in
the fall of 1997, and prescribed a wheelchair for Lingenfelter in October
1997. I do not adopt any specific interpretation of Dr. Caillouette’s state-
ment. I only contend that there is more than one reasonable interpretation
of the statement, and that it is not our prerogative to adopt, de novo, our
own interpretation.
LINGENFELTER v. ASTRUE 13457
ment as evidence discounting the statements of Lingenfelter’s
examining physicians. When evaluating conflicting medical
opinions, “the ALJ need not accept the opinion of any physi-
cian, including a treating physician, if that opinion is brief,
conclusory, and inadequately supported by clinical findings.”
Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). Dr.
Caillouette’s 1998 statements regarding Lingenfelter’s dis-
ability status are brief, conclusory and inadequately supported
by clinical findings that would indicate a change in Lingen-
felter’s condition between 1996 and 1998.4 If the ALJ inter-
preted Dr. Caillouette’s 1998 statements as finding
Lingenfelter to be disabled from all types of work, the ALJ
could evaluate this evidence as conclusory and inadequately
supported by clinical findings, and to the contrary accept the
medical opinions of Lingenfelter’s examining physicians.
IV
Although we give the ALJ broad discretion to weigh con-
flicting medical evidence when determining a claimant’s
credibility, the judgment of the district court must be reversed
in this case. The ALJ and the Appeals Council did not articu-
late “specific, legitimate reasons” for disregarding the medical
opinions of Lingenfelter’s treating physicians. Our precedent
4
The opinion of the Court states that Dr. Caillouette submitted more
than 50 pages of medical reports and clinical findings to support his Feb-
ruary 1998 opinion that Lingenfelter was disabled from all work. I dis-
agree with this characterization of the record. The lab tests and
postoperative surgery report in the record from Dr. Caillouette all date
from June 1996 or earlier, before Dr. Caillouette’s September 1996 report
finding Lingenfelter to be disabled only from heavy work as a laborer.
They provide no support for Dr. Caillouette’s revised February 1998
assessment of Lingenfelter’s disability. The findings from Dr. Caillouette
in the record after 1996 up through February 1998 primarily consist of
brief statements reporting Lingenfelter’s subjective level of pain. A claim-
ant’s subjective complaints form an inadequate basis for a physician’s
finding of disability. See Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th
Cir. 2005). Dr. Caillouette’s clinical findings are, in my view, inadequate
to support his revised 1998 assessment of Lingenfelter’s disability.
13458 LINGENFELTER v. ASTRUE
is clear that, “[e]ven if the treating doctor’s opinion is contra-
dicted by another doctor, the ALJ may not reject this opinion
without providing ‘specific and legitimate reasons’ ” for
doing so that are “supported by substantial evidence in the
record.” Orn, 1997 WL 2034287, at *6 (citation omitted); see
also Thomas, 278 F.3d at 957; Tonapetyan, 242 F.3d at 1148.
The decision of an ALJ fails this test when the ALJ com-
pletely ignores or neglects to mention a treating physician’s
medical opinion that is relevant to the medical evidence being
discussed. See Cotton v. Bowen, 799 F.2d 1403, 1408 (9th
Cir. 1986). Such cases should be remanded to the agency for
proper consideration of the evidence. See id. at 1408-09.
V
The opinion of the Court concludes that Lingenfelter is
entitled to an award of benefits under the Smolen test. The test
states that the district court should credit evidence or testi-
mony that was rejected during the administrative process and
remand for an immediate award of benefits where: “(1) the
ALJ has failed to provide legally sufficient reasons for reject-
ing such evidence, (2) there are no outstanding issues that
must be resolved before a determination of disability can be
made, and (3) it is clear from the record that the ALJ would
be required to find the claimant disabled were such evidence
credited.” Smolen, 80 F.3d at 1292.
The Smolen test does not apply here because there are “out-
standing issues that must be resolved before a determination
of disability can be made.” As stated above, Dr. Caillouette’s
statement regarding Lingenfelter’s disability is ambiguous,
and it is exclusively within the province of the ALJ to inter-
pret ambiguous evidence. A remand to the agency is required
so that the ALJ may either interpret Dr. Caillouette’s state-
ment or hold additional hearings to determine the proper
interpretation.
We have generally applied the Smolen test only in cases
where the evidence in the record strongly supports a finding
LINGENFELTER v. ASTRUE 13459
of disability. See, e.g., Benecke v. Barnhart, 379 F.3d 587,
595 (9th Cir. 2004) (finding that, despite the finding of no dis-
ability by the ALJ, the record “clearly establishes that [claim-
ant] cannot perform a sedentary job”); McCartey v.
Massanari, 298 F.3d 1072, 1076-77 (9th Cir. 2002) (stating
that the VA rating of disability, which the ALJ did not con-
sider, was supported by several hundred pages of medical
records and must be given “great weight”; hence “a finding of
disability is clearly required”); Smolen, 80 F.3d at 1291-92
(noting that the claimant offered “extensive testimony” that
was supported by two physicians’ opinions and the rest of the
record, and that “the overwhelming evidence . . . required the
ALJ to find [claimant] disabled”); Swenson v. Sullivan, 876
F.2d 683, 688 (9th Cir. 1989) (finding that the claimant’s tes-
timony “was supported by substantial medical evidence,” and
that the only expert testified that the claimant would not be
able to engage in any work). In this case, to the contrary, the
weight of the medical evidence in the record contradicts both
the degree of Lingenfelter’s claimed disability and the medi-
cal opinions of Lingenfelter’s treating physicians. The Smolen
test was designed to expedite the resolution of disability
applicants’ claims, but should not be employed in cases where
it would be likely to result in the wrongful award of benefits.
Cf. Varney v. Sec’y of Health & Human Servs., 859 F.2d
1396, 1399 (9th Cir. 1988).
Even if the Smolen test were applicable here, our prece-
dents establish that we are not required to use the test in all
cases where it applies. Rather, we have discretion in such
cases to remand to the agency to make further credibility find-
ings. Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003);
see Nguyen v. Chater, 100 F.3d 1462, 1466-67 (9th Cir.
1996); Byrnes v. Shalala, 60 F.3d 639, 642 (9th Cir. 1995);
Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993); Bunnell
v. Sullivan, 947 F.2d 341, 348 (9th Cir. 1991) (en banc)
(affirming the district court decision remanding the case to the
agency). In this case, I would remand to the agency for further
13460 LINGENFELTER v. ASTRUE
credibility findings, given that the weight of the medical evi-
dence contradicts Lingenfelter’s claim of complete disability.
VI
I would reverse the judgment of the district court and
remand to the district court with instructions to remand to the
Commissioner of the Social Security Administration for fur-
ther administrative proceedings consistent with this dissent.