Kim Brown-Hunter v. Carolyn W. Colvin , 806 F.3d 487 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KIM BROWN-HUNTER, No. 13-15213
Plaintiff-Appellant,
D.C. No.
v. 2:11-cv-02573-
FJM
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the District of Arizona
Frederick J. Martone, Senior District Judge, Presiding
Argued and Submitted
March 13, 2015—San Francisco, California
Filed August 4, 2015
Before: J. Clifford Wallace, Milan D. Smith, Jr.,
and Paul J. Watford, Circuit Judges.
Opinion by Judge Wallace
2 BROWN-HUNTER V. COLVIN
SUMMARY*
Social Security
The panel vacated the district court’s judgment affirming
the Social Security Administrative Law Judge’s denial of a
claimant’s application for Social Security disability benefits,
and remanded with instructions to remand the case to the ALJ
for further proceedings.
When an ALJ determines that a claimant for Social
Security benefits is not malingering and has provided
objective medical evidence of an underlying impairment
which might reasonably produce the pain or other symptoms
she alleged, the ALJ may reject the claimant’s testimony
about the severity of those symptoms only by providing
specific, clear, and convincing reasons for doing so.
The panel held that the ALJ, who found generally that the
claimant’s testimony was not credible, erred by failing to
identify which part of the claimant’s testimony was not
credible and why. The panel held that an ALJ does not
provide the specific, clear, and convincing reasons for
rejecting a claimant’s testimony by simply reciting the
medical evidence in support of his or her residual functional
capacity determination. The panel held that the ALJ must
specify which testimony she finds not credible, and then
provide clear and convincing evidence, supported by
evidence in the record, to support that credibility
determination. The panel noted that the inconsistencies
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
BROWN-HUNTER V. COLVIN 3
identified independently by the district court cannot provide
the basis upon which to affirm the ALJ’s decision. The panel
held that the ALJ’s error was not harmless because it
prevented the panel from conducting a meaningful review of
the ALJ’s reasoning.
The panel concluded that critical factual issues remained
unresolved, and that further proceedings would be useful.
The panel, accordingly, instructed the district court to remand
to the ALJ for further proceedings rather than for an
immediate award of benefits.
COUNSEL
Eric G. Slepian (argued), Phoenix, Arizona, for Plaintiff-
Appellant.
Jessica Milano (argued) and Matthew M. Linton, Special
Assistant United States Attorneys, and John Jay Lee,
Regional Chief Counsel, Region VIII, Social Security
Administration Office of the General Counsel, Denver,
Colorado; John S. Leonardo, United States Attorney, Michael
Johns, Assistant United States Attorney, Denver, Colorado,
for Defendant-Appellee.
4 BROWN-HUNTER V. COLVIN
OPINION
WALLACE, Senior Circuit Judge:
When an Administrative Law Judge (ALJ) determines
that a claimant for Social Security benefits is not malingering
and has provided objective medical evidence of an underlying
impairment which might reasonably produce the pain or other
symptoms she alleges, the ALJ may reject the claimant’s
testimony about the severity of those symptoms only by
providing specific, clear, and convincing reasons for doing
so. We hold that an ALJ does not provide specific, clear, and
convincing reasons for rejecting a claimant’s testimony by
simply reciting the medical evidence in support of his or her
residual functional capacity determination. To ensure that our
review of the ALJ’s credibility determination is meaningful,
and that the claimant’s testimony is not rejected arbitrarily,
we require the ALJ to specify which testimony she finds not
credible, and then provide clear and convincing reasons,
supported by evidence in the record, to support that
credibility determination.
Here, the ALJ found generally that the claimant’s
testimony was not credible, but failed to identify which
testimony she found not credible and why. We conclude,
therefore, that the ALJ committed legal error. This error was
not harmless because it precludes us from conducting a
meaningful review of the ALJ’s reasoning. We therefore
vacate the district court’s judgment affirming the ALJ’s
denial of benefits. Because we conclude that critical factual
issues remain unresolved, and that further proceedings will be
useful, we instruct the district court to remand this case to the
ALJ for further proceedings rather than for an immediate
award of benefits.
BROWN-HUNTER V. COLVIN 5
I.
Kim Brown-Hunter applied for Social Security disability
benefits and supplemental security income on April 29, 2009.
After the Social Security Administration denied her claims
initially and again on reconsideration, Brown-Hunter timely
requested and was granted a hearing before an ALJ.
A.
At the hearing, Brown-Hunter provided medical evidence
that she suffered from obesity, peripheral neuropathy, lumbar
degenerative disc disease, diabetes mellitus, migraine
headaches, hypothyroidism, hypertension, and asthma.
Brown-Hunter told the ALJ that until 2003 she had worked as
a certified nursing assistant, but had to stop working because
she “could no longer lift the patients or get them out of bed or
in bed.” She testified that she looked for other work until
about 2005, when “it just got to the point where [she]
couldn’t sit up or stand up or walk a distance.”
Brown-Hunter next described her then-current functional
limitations. She testified that she could not drive long
distances, that she could lift only about ten pounds, and that
she was able to sit only for about an hour and to stand only
for about forty-five minutes. She described her daytime
routine as “sit[ting] in the garage for a couple hours,” which
was often interrupted by the need to lie down “like four or
five times for about thirty minutes” because her “feet and . . .
legs [would] swell up when [she was] on them too much.” In
the evenings, she stated she would talk, visit, and watch
television with her son and daughter, and that if she needed
something from the store, her daughter would get it for her.
When the ALJ asked about her ability to do housework,
6 BROWN-HUNTER V. COLVIN
Brown-Hunter stated that she was able to “pick up some, but
[was] not able to sweep anymore or mop or vacuum or bend
down for the dishwasher.”
Brown-Hunter told the ALJ that her functional limitations
were caused in part by severe back and leg pain, coupled with
swelling in her lower extremities. When the ALJ asked if
anything alleviated this pain and swelling, Brown-Hunter
replied that elevating her feet, as prescribed by her doctors,
helped with the leg and feet pain, but that “[w]ith my back I
have to l[ie] down.” Brown-Hunter stated that to control the
pain and swelling effectively, she needed to elevate her feet
twice a week for thirty minutes to an hour, and to lie down
three to four times a day for thirty minutes to an hour. Brown-
Hunter also provided evidence that she was taking roughly
twenty medications, including strong pain medications, such
as oxycodone.
After Brown-Hunter concluded her testimony, the ALJ
turned to the vocational expert. The ALJ asked the vocational
expert a series of hypothetical questions to identify the
occupations that existed in significant numbers in the national
economy that an individual could perform, assuming such an
individual had Brown-Hunter’s same age, education, past
work experience, and functional limitations.
The ALJ began by asking the vocational expert which
occupations would be available to such individual “limited to
a range of light work as . . . defined under the regulations,”
but with the ability to do “no more than occasional pushing
and pulling with the upper and lower extremities.” The
vocational expert identified a handful of possible jobs,
including “light janitorial or light office cleaning,” and an
unskilled, light “[a]ssembly position.” When the ALJ asked
BROWN-HUNTER V. COLVIN 7
how his testimony would change if that hypothetical was
modified “to add . . . that the individual would be off task 15
to 20 percent of the work day,” the vocational expert replied
that such individual “would not be able to sustain the work.”
The ALJ then allowed Brown-Hunter’s counsel to
question the vocational expert. As relevant here, counsel
asked the vocational expert to assume an individual with
lower extremity swelling who needed to elevate her feet thirty
minutes to one hour twice a week:
Q: If we were to assume those limitations,
would such an individual be able to perform
Claimant’s past work?
A: No.
Q: Would there be any other job they could
sustain?
A: Not likely.
...
Q: And if an individual needed to rest or lie
down . . . two or three times a day for thirty
minutes at a time, . . . and it was unscheduled,
would that preclude such an individual from
performing Claimant’s past work?
A: Yes.
Q: Would it allow for any other jobs?
8 BROWN-HUNTER V. COLVIN
A: No.
Shortly after this testimony the hearing concluded.
B.
Several weeks later, the ALJ issued a written decision
denying Brown-Hunter’s claims. Following the Social
Security Act’s five-step procedure for determining disability,
see 20 C.F.R. § 416.920(a)(4), the ALJ concluded at step one
that Brown-Hunter had not engaged in substantial gainful
activity since the date of the alleged onset. At step two, the
ALJ concluded that Brown-Hunter suffered from the “severe”
impairments of “obesity, peripheral neuropathy, lumbar
degenerative disc disease (DDD), diabetes mellitus (DM),
and migraine headaches.” However, at step three, the ALJ
concluded that those impairments did not—either in isolation
or in combination—meet or equal a “listed” impairment. See
20 C.F.R. § 404, Subpart P, App’x 1. This conclusion
required the ALJ to then determine Brown-Hunter’s Residual
Functional Capacity (RFC) in preparation for step four.
The ALJ began her discussion of the RFC with her
conclusion that Brown-Hunter had the RFC “to perform light
work . . . except she can perform no more than occasional
pushing and pulling with the upper and lower extremities.”
The ALJ then acknowledged her duty to “evaluate the
intensity, persistence, and limiting effects of the claimant’s
symptoms to determine the extent to which they limit the
claimant’s functioning,” and, where appropriate, to “make a
finding on the credibility of the statements based on a
consideration of the entire case record.” She went on to
paraphrase Brown-Hunter’s testimony regarding the
chronology of her back pain, followed by a summary of the
BROWN-HUNTER V. COLVIN 9
treatments and prescriptions for that pain, the symptoms
pertaining to Brown-Hunter’s diabetic peripheral neuropathy,
as well as Brown-Hunter’s height, weight, smoking habits,
and ability “to drive short distances, sit for one hour and stand
for 45 minutes.”
Following that summary, the ALJ concluded that although
Brown-Hunter’s “medically determinable impairments could
reasonably be expected to cause some of the alleged
symptoms,” her “statements concerning the intensity,
persistence and limiting effects of these symptoms are not
credible to the extent they are inconsistent with the above
residual functional capacity assessment.”
Finally, after devoting the next eight paragraphs to
summarizing the medical evidence in the record, the ALJ
stated:
After careful consideration of the entire
record, including the medical evidence and
the testimony at the hearing, I find the
functional limitations resulting from the
claimant’s impairments were less serious than
she has alleged. . . . [While] the medical
evidence supports a finding that the
claimant’s impairments . . . impos[e] some
restrictions, [they] did not prevent her from
engaging in all work related activities.
Consequently, the ALJ proceeded to step four and
concluded that Brown-Hunter’s limited RFC precluded her
from performing any past relevant work. But at step five, the
ALJ determined that, considering Brown-Hunter’s RFC, age,
education, and work experience, she was able to do other
10 BROWN-HUNTER V. COLVIN
work that existed in significant numbers in the national
economy. Citing the vocational expert’s testimony that a
hypothetical individual with the “same age, education, and
past relevant work experience” as Brown-Hunter could
perform occupations such as “light janitorial” and
“assembly,” the ALJ concluded that Brown Hunter was not
disabled under the Social Security Act.
C.
The ALJ’s decision became final when the Social
Security Appeals Council denied review. Brown-Hunter then
appealed from the ALJ’s decision to the district court. She
argued that the ALJ erred by “fail[ing] to provide clear and
convincing reasons for rejecting her symptom testimony.”
The district court rejected her argument, holding that “the
ALJ gave clear and convincing reasons to support [her]
determination that [Brown-Hunter’s] ‘impairments were less
serious than she has alleged.’” The district court pieced
together medical evidence identified by the ALJ that it found
inconsistent with “an allegation of excess pain,” and stated
therefore that the ALJ “identified several inconsistencies
between [Brown-Hunter’s] testimony and the record,” and
“gave clear and convincing reasons to support [her]
determinations that [Brown-Hunter’s] impairments were less
serious than she has alleged.’” The district court affirmed the
ALJ’s decision, and Brown-Hunter timely filed this appeal,
over which we have jurisdiction pursuant to 28 U.S.C.
§ 1291.
II.
We review de novo a district court’s order affirming an
ALJ’s denial of Social Security benefits. Hill v. Astrue,
BROWN-HUNTER V. COLVIN 11
698 F.3d 1153, 1158 (9th Cir. 2012). On de novo review, we
must bear in mind that a federal court’s review of Social
Security determinations is quite limited. “For highly fact-
intensive individualized determinations like a claimant’s
entitlement to disability benefits, Congress ‘places a premium
upon agency expertise, and, for the sake of uniformity, it is
usually better to minimize the opportunity for reviewing
courts to substitute their discretion for that of the agency.’”
Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090,
1098 (9th Cir. 2014), quoting Consolo v. Fed. Mar. Comm’n,
383 U.S. 607, 621 (1966). To ensure that we adhere to this
principle, we follow three important rules in our analysis of
the ALJ’s decision.
The first is that “we leave it to the ALJ to determine
credibility, resolve conflicts in the testimony, and resolve
ambiguities in the record.” Treichler, 775 F.3d at 1098. The
second is that we will “disturb the Commissioner’s decision
to deny benefits ‘only if it is not supported by substantial
evidence or is based on legal error.’” Id., quoting Andrews v.
Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). The third is that
“[e]ven when the ALJ commits legal error, we uphold the
decision where that error is harmless,” meaning that “it is
inconsequential to the ultimate nondisability determination,”
or that, despite the legal error, “the agency’s path may
reasonably be discerned, even if the agency explains its
decision with less than ideal clarity.” 775 F.3d at 1099
(internal quotation marks and citations omitted).
That said, “our precedents have been cautious about when
harmless error should be found.” Marsh v. Colvin, ___ F.3d
___, No. 12-17014, 2015 WL 4153858, *2 (9th Cir. June 18,
2015). Ever mindful of our duty not to substitute our own
discretion for that of the agency, we have emphasized that
12 BROWN-HUNTER V. COLVIN
“the decision on disability rests with the ALJ and the
Commissioner of the Social Security Administration in the
first instance, not with a district court.” Id. at *3. Thus,
although we will not fault the agency merely for explaining
its decision with “less than ideal clarity,” Treichler, 775 F.3d
at 1099 (citation and internal quotation marks omitted), we
still demand that the agency set forth the reasoning behind its
decisions in a way that allows for meaningful review. A clear
statement of the agency’s reasoning is necessary because we
can affirm the agency’s decision to deny benefits only on the
grounds invoked by the agency. Stout v. Comm’r, Soc. Sec.
Admin., 454 F.3d 1050, 1054 (9th Cir. 2006).
A reviewing court may not make independent findings
based on the evidence before the ALJ to conclude that the
ALJ’s error was harmless. Id.; see also Marsh, 2015 WL
4153858, *2 (a district court may not find harmless error by
“affirm[ing] the agency on a ground not invoked by the
ALJ”). Rather, “[w]e are constrained to review the reasons
the ALJ asserts.” Connett v. Barnhart, 340 F.3d 871, 874 (9th
Cir. 2003). If the ALJ fails to specify his or her reasons for
finding claimant testimony not credible, a reviewing court
will be unable to review those reasons meaningfully without
improperly “substitut[ing] our conclusions for the ALJ’s, or
speculat[ing] as to the grounds for the ALJ’s conclusions.”
Treichler, 775 F.3d at 1103. Because we cannot engage in
such substitution or speculation, such error will never be
harmless.
III.
Where, as here, an ALJ concludes that a claimant is not
malingering, and that she has provided objective medical
evidence of an underlying impairment which might
BROWN-HUNTER V. COLVIN 13
reasonably produce the pain or other symptoms alleged, the
ALJ may “reject the claimant’s testimony about the severity
of her symptoms only by offering specific, clear and
convincing reasons for doing so.” Lingenfelter v. Astrue,
504 F.3d 1028, 1036 (9th Cir. 2007) (citation and internal
quotation marks omitted). The Commissioner disputes that
standard of review. Relying primarily on Bunnell v. Sullivan,
947 F.2d 341 (9th Cir. 1991), the Commissioner argues that
although the court reviews the ALJ’s credibility finding for
adequate specificity, “clear and convincing” reasons are not
required. We recently rejected this argument in Burrell v.
Colvin, 775 F.3d 1133, 1136–37 (9th Cir. 2014) (holding that
the “clear and convincing” requirement actually predated
Bunnell and was not “excised” by it). Burrell therefore
forecloses the Commissioner’s argument.
A finding that a claimant’s testimony is not credible
“must be sufficiently specific to allow a reviewing court to
conclude the adjudicator rejected the claimant’s testimony on
permissible grounds and did not arbitrarily discredit a
claimant’s testimony regarding pain.” Bunnell, 947 F.2d at
345–46 (citation and internal quotation marks omitted).
“General findings are insufficient; rather, the ALJ must
identify what testimony is not credible and what evidence
undermines the claimant’s complaints.” Reddick v. Chater,
157 F.3d 715, 722 (9th Cir. 1998) (citation and internal
quotation marks omitted). See also Holohan v. Massanari,
246 F.3d 1195, 1208 (9th Cir. 2001) (“the ALJ must
specifically identify the testimony she or he finds not to be
credible and must explain what evidence undermines the
testimony” (emphasis added)). The governing Social Security
rulings, which “are binding on all components of the Social
Security Administration, . . . and are to be relied upon as
precedents in adjudicating cases,” Orn v. Astrue, 495 F.3d
14 BROWN-HUNTER V. COLVIN
625, 636 (9th Cir. 2007), quoting 67 Fed. Reg. at 57860, are
clear on this point:
it is not sufficient for the adjudicator to make
a single, conclusory statement that ‘the
individual’s allegations have been considered’
or that ‘the allegations are [not] credible.’ . . .
The determination . . . must contain specific
reasons for the finding on credibility,
supported by the evidence in the case record,
and must be sufficiently specific to make clear
to . . . any subsequent reviewers the weight
the adjudicator gave to the individual’s
statements and the reasons for that weight.
Social Security Ruling 96-7P, 1996 WL 374186 at *2 (July 2,
1996) (emphasis added).
Following these principles in Treichler, for example, we
held that the ALJ erred by making only a “single general
statement that ‘the claimant’s statements concerning the
intensity, persistence and limiting effects of these symptoms
are not credible to the extent they are inconsistent with the
above residual functional capacity assessment,’” without
identifying “sufficiently specific reasons” for rejecting the
testimony, supported by evidence in the case record. 775 F.3d
at 1102–03. The ALJ here made the identical conclusory
statement and likewise failed to identify specifically which of
Brown-Hunter’s statements she found not credible and why.
Instead, the ALJ stated only that she found, based on
unspecified claimant testimony and a summary of medical
evidence, that “the functional limitations from the claimant’s
impairments were less serious than she has alleged.”
BROWN-HUNTER V. COLVIN 15
We disagree with the district court that the ALJ
“identified several inconsistencies between [Brown-Hunter’s]
testimony and the record,” and therefore “gave clear and
convincing reasons to support” her non-credibility
determination. Our review of the ALJ’s written decision
reveals that she did not specifically identify any such
inconsistencies; she simply stated her non-credibility
conclusion and then summarized the medical evidence
supporting her RFC determination. This is not the sort of
explanation or the kind of “specific reasons” we must have in
order to review the ALJ’s decision meaningfully, so that we
may ensure that the claimant’s testimony was not arbitrarily
discredited. Although the inconsistencies identified by the
district court could be reasonable inferences drawn from the
ALJ’s summary of the evidence, the credibility determination
is exclusively the ALJ’s to make, and ours only to review. As
we have long held, “[W]e are constrained to review the
reasons the ALJ asserts.” Connett v. Barnhart, 340 F.3d 871,
874 (9th Cir. 2003) (emphasis added). Thus, the
inconsistencies identified independently by the district court
cannot provide the basis upon which we can affirm the ALJ’s
decision.
Indeed, “[o]ur decisions make clear that we may not take
a general finding—an unspecified conflict between
Claimant’s testimony . . . and her reports to doctors—and
comb the administrative record to find specific conflicts.”
Burrell, 775 F.3d at 1138. Because the ALJ failed to identify
the testimony she found not credible, she did not link that
testimony to the particular parts of the record supporting her
non-credibility determination. This was legal error. See id. at
1139 (holding that the ALJ committed legal error because he
“never connected the medical record to Claimant’s
testimony” nor made “a specific finding linking a lack of
16 BROWN-HUNTER V. COLVIN
medical records to Claimant’s testimony about the intensity
of her . . . pain” (emphasis added)). Even if the district court’s
analysis was sound, it could not overcome the error of the
ALJ. That is, the error could not be corrected by the district
court’s statement of links between claimant testimony and
certain medical evidence.
Nor was that error harmless. An error is harmless only if
it is “inconsequential to the ultimate nondisibility
determination,” Molina v. Astrue, 674 F.3d 1104, 1115 (9th
Cir. 2012) (citation and internal quotation marks omitted), or
if despite the legal error, “the agency’s path may reasonably
be discerned,” Treichler, 775 F.3d at 1099 (citation and
internal quotation marks omitted). But here, we cannot
discern the agency’s path because the ALJ made only a
general credibility finding without providing any reviewable
reasons why she found Brown-Hunter’s testimony to be not
credible. See id. at 1103. Although the ALJ summarized a
significant portion of the administrative record in support of
her RFC determination, providing a summary of medical
evidence in support of a residual functional capacity finding
is not the same as providing clear and convincing reasons for
finding the claimant’s symptom testimony not credible. We
reject the Commissioner’s argument, also rejected in
Treichler, that because the ALJ “set out his RFC and
summarized the evidence supporting his determination” we
can infer “that the ALJ rejected [petitioner’s] testimony to the
extent it conflicted with that medical evidence.” Id. We
cannot review whether the ALJ provided specific, clear, and
convincing reasons for rejecting Brown-Hunter’s pain
testimony where, as here, the ALJ never identified which
testimony she found not credible, and never explained which
evidence contradicted that testimony. Burrell, 775 F.3d at
1138. This “falls short of meeting the ALJ’s responsibility to
BROWN-HUNTER V. COLVIN 17
provide . . . ‘the reason or reasons upon which’ [her] adverse
determination is based.” Treichler, 775 F.3d at 1103, quoting
42 U.S.C. § 405(b)(1).
In sum, “we cannot substitute our conclusions for the
ALJ’s, or speculate as to the grounds for the ALJ’s
conclusions. Although the ALJ’s analysis need not be
extensive, the ALJ must provide some reasoning in order for
us to meaningfully determine whether the ALJ’s conclusions
were supported by substantial evidence.” 775 F.3d at 1103
(internal citation omitted). The ALJ provided no such
reasoning here. “Because ‘the agency’s path’ cannot
‘reasonably be discerned,’ Alaska Dep’t of Envtl. Conserv. [v.
EPA], 540 U.S. [461,] 497 [(2004)], we must reverse the
district court’s decision to the extent it affirmed the ALJ’s
credibility determination.” 775 F.3d at 1099.
IV.
Brown-Hunter argues that in light of the ALJ’s error, we
must credit her testimony as true and remand to the district
court with instructions to remand to the agency for an
immediate award of benefits. A remand for an immediate
award of benefits is appropriate, however, only in “rare
circumstances.” Id. Before ordering that extreme remedy, we
must first satisfy ourselves that three requirements have been
met.
First, we must conclude that “the ALJ has failed to
provide legally sufficient reasons for rejecting evidence,
whether claimant testimony or medical opinion.” Garrison v.
Colvin, 759 F.3d 995, 1020 (9th Cir. 2014).
18 BROWN-HUNTER V. COLVIN
Second, we must conclude that “the record has been fully
developed and further administrative proceedings would
serve no useful purpose.” Id. This requirement will not be
satisfied if “the record raises crucial questions as to the extent
of [a claimant’s] impairment given inconsistencies between
his testimony and the medical evidence in the record,”
because “[t]hese are exactly the sort of issues that should be
remanded to the agency for further proceedings.” Treichler,
775 F.3d at 1105. Importantly, we are “to assess whether
there are outstanding issues requiring resolution before
considering whether to hold that the claimant’s testimony is
credible as a matter of law.” Id. This is because “a reviewing
court is not required to credit claimants’ allegations regarding
the extent of their impairments as true merely because the
ALJ made a legal error in discrediting their testimony.” Id. at
1106. The touchstone for an award of benefits is the existence
of a disability, not the agency’s legal error. To condition an
award of benefits only on the existence of legal error by the
ALJ would in many cases make “‘disability benefits . . .
available for the asking, a result plainly contrary to 42 U.S.C.
§ 423(d)(5)(A).’” Id., quoting Fair v. Bowen, 885 F.2d 597,
603 (9th Cir. 1989).
Third, we must conclude that “if the improperly
discredited evidence were credited as true, the ALJ would be
required to find the claimant disabled on remand.” Garrison,
759 F.3d at 1021.
Finally, even if all three requirements are met, we retain
“flexibility” in determining the appropriate remedy. Id. We
may remand on an open record for further proceedings “when
the record as a whole creates serious doubt as to whether the
claimant is, in fact, disabled within the meaning of the Social
Security Act.” Id.
BROWN-HUNTER V. COLVIN 19
Here, although we conclude that the ALJ committed legal
error by failing to specify which testimony she found not
credible and why, we will not remand for an immediate
award of benefits because we are not satisfied that “further
administrative proceedings would serve no useful purpose.”
Id. at 1020. Indeed, the record raises crucial questions about
the extent to which Brown-Hunter’s pain and accompanying
symptoms render her disabled. Brown-Hunter’s testimony
that her back and leg pain are relieved only by lying down
four to five times a day for thirty minutes each, and by
elevating her legs twice a week for thirty minutes to an hour
each, appears dispositive to the ultimate disability
determination in light of the vocational expert’s hearing
testimony. Indeed, when asked hypothetically if a person who
was required to be “off task approximately 15 to 20 percent
of the workday” would be able to sustain the specified light
work, the vocational expert testified that he or she “would
not.” When asked whether “an individual [who] needed to
rest or lie down . . . two or three times a day for thirty minutes
at a time” on an unpredictable schedule would be able to
sustain “any other jobs,” the vocational expert testified, “No.”
And even when the ALJ reduced the hypothetical frequency
of feet-elevation to only twice a week, the vocational expert
again confirmed that such an individual “wouldn’t be able to
sustain [light work]. No.”
But Brown-Hunter’s need to lie down and to elevate her
feet with such frequency is contingent on the assumption that
her pain is in fact debilitating and that no other alternative
treatment besides lying down adequately alleviates that pain.
However, “the record raises crucial questions” on these issues
“given [the] inconsistencies between [her] testimony and the
medical evidence in the record.” Treichler, 775 F.3d at 1105.
For example, Dr. Massrour’s June 2010 assessment appears
20 BROWN-HUNTER V. COLVIN
to undermine Brown-Hunter’s allegation that she had zero
residual functional capacity due to debilitating lower back
pain. Dr. Massrour found that her pain averaged a 5 on a 10
point scale, that she “denied progressive neurological deficits,
focal weakness, [and] dense numbness,” and that she was
“independent with [her activities of daily living].” The record
also suggests that her pain was adequately controlled with
medication. For example, the records of her monthly visits to
the Phoenix Pain Management Center indicate that the pain
medications she was taking provided “adequate pain control”
and that her “[f]unctionability on [t]reatment” was improving
with treatment, as evidenced by numbers of 6 to 8 on a 10-
point scale, with higher numbers indicating improvement.
Another pain management report on May 8, 2009, states that
Brown-Hunter reported “adequate” pain control, and that she
was “able to function well.”
Although medical reports of adequate pain control on
medication do not foreclose the possibility that Brown-Hunter
still needs to lie down as often and as unpredictably as she
alleged, they do create a significant factual conflict in the
record that should be resolved through further proceedings on
an open record before a proper disability determination can
be made by the ALJ in the first instance. See Treichler,
775 F.3d at 1106–07; Burrell, 775 F.3d at 1141–42. “Where
there is conflicting evidence, and not all essential factual
issues have been resolved, a remand for an award of benefits
is inappropriate.” Treichler, 775 F.3d at 1101. We therefore
vacate the judgment of the district court and remand with
instructions to remand to the agency for further proceedings
on an open record.
VACATED AND REMANDED.