Karen Garrison v. Carolyn W. Colvin

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KAREN S. GARRISON, No. 12-15103
Plaintiff-Appellant,
D.C. No.
v. 2:10-cv-02484-
JWS
CAROLYN W. COLVIN,
Commissioner of Social Security
Administration, OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
John W. Sedwick, District Judge, Presiding
Argued and Submitted
March 10, 2014—San Francisco, California
Filed July 14, 2014
Before: Jerome Farris, Stephen Reinhardt,
and A. Wallace Tashima, Circuit Judges.
Opinion by Judge Reinhardt
2 GARRISON V. COLVIN
SUMMARY*
Social Security
The panel reversed the district court’s order remanding
the case to the Commissioner of Social Security
Administration for further proceedings, and instead remanded
with instructions to the administrative law judge to calculate
and award Social Security disability benefits to the claimant.
The panel held that the administrative law judge (“ALJ”)
erred in assessing the medical opinion evidence. The panel
also held that the ALJ erred by failing to offer specific, clear,
and convincing reasons for discrediting the claimant’s
symptom testimony concerning her physical and mental
impairments.
The panel outlined the three-part credit-as-true standard,
each part of which must be satisfied in order for a court to
remand to an ALJ with instructions to calculate and award
benefits: (1) the record has been fully developed and further
administrative proceedings would serve no useful purpose;
(2) the ALJ has failed to provide legally sufficient reasons for
rejecting evidence, whether claimant testimony or medical
opinion; and (3) if the improperly discredited evidence were
credited as true, the ALJ would be required to find the
claimant disabled on remand. The panel held that the district
court abused its discretion by remanding for further
proceedings where the credit-as-true rule was satisfied and
the record afforded no reason to believe that the claimant was
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
GARRISON V. COLVIN 3
not, in fact, disabled. The panel held that a remand for a
calculation and award of benefits was required.
COUNSEL
Mark Caldwell, Caldwell & Ober, Phoenix, Arizona, for
Plaintiff-Appellant.
Laura H. Holland (argued), Special Assistant United States
Attorney, Social Security Administration, Office of the
General Counsel, Denver, Colorado; John S. Leonardo,
United States Attorney, Michael A. Johns, Assistant United
States Attorney, United States Attorneys’ Office, Phoenix,
Arizona; John Jay Lee (of counsel), Regional Chief Counsel,
Region VIII, Social Security Administration, Office of the
General Counsel, Denver, Colorado, for Defendant-Appellee.
OPINION
REINHARDT, Circuit Judge:
Karen Garrison appeals from a denial of Social Security
benefits, arguing that the Administrative Law Judge (“ALJ”)
erred in rejecting her symptom testimony and in assigning
little weight to the opinions of her treating medical
caretakers. In a decision that the Commissioner does not
contest, the district court determined that the ALJ erred in
assessing the medical opinion evidence and remanded the
case for further proceedings. We conclude that the ALJ also
erred in discrediting Garrison’s symptom testimony, and that
the district court abused its discretion in remanding for
further proceedings. Applying our settled “credit-as-true”
4 GARRISON V. COLVIN
rule, we reverse the judgment below with instructions to
remand this case to the ALJ for the calculation and award of
benefits.
BACKGROUND
I
Karen Garrison was born in 1970. In an application for
disability insurance benefits filed on September 7, 2007, she
stated that she has been disabled since April 17, 2007 due to
a combination of physical and mental impairments. Before
her stated disability onset date, she worked as a bus driver,
bus monitor, cashier, pizza cook, convenience store clerk, and
customer service manager.
After Garrison’s application for benefits was denied on
January 4, 2008, and after her request for reconsideration was
denied on March 12, 2008, she requested a hearing before an
ALJ. At the hearing, which was held on July 14, 2009,
Garrison presented extensive medical records to support her
claim of disability and testified at length about how her
impairments affect her daily life. The ALJ also heard
testimony from a vocational expert (“VE”). The evidence
presented at the hearing covered the period from April 2007
to June 2009, and comprehensively addressed Garrison’s
physical and mental health.
A. Physical Impairments
Since 2006, as shown by the records of Dr. Christopher
Labban, her primary care provider, Garrison has suffered
from a variety of physical ailments—including chronic neck
and back pain, degenerative joint disease, sciatica, obesity,
GARRISON V. COLVIN 5
asthma, and herniated discs. Labban’s notes from late 2006
and early-to-mid 2007 reveal that, despite a variety of
attempted treatments, many of these medical conditions
persisted or worsened.1 Garrison’s chronic neck and back
pain was an especially serious problem: nothing seemed to
help, it began interfering with her daily life, and the pain
started slowly creeping into her shoulders, arms, and legs. In
response, Labban referred Garrison to Dr. George Wang, a
neurologist. Wang started treating Garrison in September
2007 and continued treating her through June 2009, the date
of the last medical record in this case.2
When Wang first evaluated Garrison, he noted that she
reported severe neck and back pain that radiated outward and
caused other symptoms; the neck pain radiated into her upper
arms and caused numbness and tingling, and the lower back
pain caused a burning sensation that radiated into her legs.
He observed that prolonged standing aggravated her pain, as
did turning her head. In his assessment, Wang noted that
MRI results confirmed that Garrison suffered from spinal disc
protrusions and determined that her pain symptoms involved
“radicular features.” He also remarked that Garrison had
1
In early 2007, a number of MRI scans confirmed disc protrusions in
Garrison’s spine. Around the same time, Garrison briefly received
physical therapy, the treatment records for which assessed “signs and
symptoms consistent [with] low back pain due to pelvic instability and
deceased proximal musculature strength/stability.” Physical therapy
provided only partial relief, however, and Garrison was forced to stop
attending after four sessions due to insurance restrictions and financial
troubles.
2
Some of Wang’s treatment records are signed by Nurse Practitioner
Laura Kinney, with an advisement that she was acting under his direction
or supervision in preparing the notes.
6 GARRISON V. COLVIN
decreased muscle strength of the left triceps and decreased
strength of the lower extremities more distally, symptoms that
he viewed as “suggestive of cervical and lumbar
radiculopathy.” Follow-up tests performed on October 1,
2007 supported his initial diagnosis of cervical and lumbar
radiculopathy.
Wang further noted in September 2007 that Garrison
reported experiencing what she described as “seizures,” in
which her mind went blank, her body seized up, she started
shaking uncontrollably, and she heard voices yelling at her.
Wang theorized that she was suffering from panic attacks.
Garrison’s symptoms grew worse between September and
December 2007. Wang’s treatment notes indicate that
Garrison reported having experienced another “seizure” while
at the grocery store, causing her to seize up, feel like most of
her body was burning, slur her speech, and collapse.
Garrison also stated that, at night, she felt sustained twitching
in her body, “like electronic current zaps through her head.”
More significant, her burning and aching neck pain continued
to radiate into her shoulders at a 10/10 level of intensity;
Garrison stated that “she has electric jolts going up to her
head when she moves her neck” and that her arms kept falling
asleep. Garrison’s lower back pain, too, rated 10/10 in
intensity, and Wang observed that it was made worse by
prolonged standing. Noting that Garrison was very drowsy
from all of the pain medication she was taking—medication
that did not effectively control her pain—Wang cleared
Garrison for epidural shots. He also modified the
medications she was taking, which at the time included
Tegretol, Neurontin, and Baclofen.
GARRISON V. COLVIN 7
In November 2007, Dr. Ernest Griffin, a state agency
consulting physician who never examined Garrison,
completed a physical residual functional capacity assessment.
His report consists of answers to a series of check-box
questions and a few lines of explanation that do not reference
most of Garrison’s treatment records or any of her statements.
Griffith noted in his report that he did not consider any
statements by Garrison’s treating and examining physicians.
Griffin opined that Garrison could occasionally lift or carry
20 pounds, frequently lift or carry 10 pounds, stand and/or
walk for about 6 hours in an 8-hour workday, and push or
pull without limitation. He added that she could occasionally
climb ramps and stairs, kneel, crouch, and crawl, and could
frequently stoop. He opined that she had no limitations with
respect to cold, heat, wetness, humidity, noise, and vibration,
but should avoid concentrated exposure to fumes, odors,
dusts, gases, poor ventilation, and hazards.
In January 2008, consistent with his treatment records and
those of Labban over the prior months, Wang noted that
Garrison’s symptoms of “seizures” and unbearable pain
persisted unabated. Her neck and back pain still rated at
10/10 in intensity, still radiated into her arms, shoulders, and
legs, and still caused a mix of burning, numbness, and
tingling. Garrison also reported intense fatigue due to
insomnia and frequent twitching at night, as well as ongoing
“seizures” that disrupted her daily activities. One such
“seizure,” in late January 2008, caused her to shake on the
left side of her body and was accompanied by a spell of
confusion and stuttering. These symptoms, in turn, were
exacerbated by drowsiness from her medications, episodes of
weakness, and a persistence in decreased muscle strength in
her left arm and lower extremities.
8 GARRISON V. COLVIN
As of February 2008, Garrison’s pain symptoms were
only marginally less severe: she reported that her neck pain
remained at 8/10 in intensity, with jerking, numbness, and
tingling in her arms that frequently caused her to drop things,
and stated that her back pain was at 7/10 in intensity, with a
burning sensation that radiated into her legs. These and other
symptoms often caused her to lose her balance and to lean to
one side.3
Summarizing his assessment of Garrison’s symptoms on
February 20, 2008, Wang stated as follows in a “Pain
Functional Capacity (PFC) Questionnaire” that posed a series
of questions followed by check-boxes: Garrison did have
pain; this pain was “moderately severe (pain seriously affects
ability to function)”; and this pain was reasonably expected
to result from objective clinical or diagnostic findings
documented in Garrison’s medical records. Wang noted that
Garrison’s pain was precipitated by changing weather,
movement, overuse, stress, and cold, and was “frequently”
severe enough to interfere with Garrison’s attention and
concentration. Wang added that, due to her pain symptoms,
Garrison “frequently” experienced deficiencies of
concentration, persistence or pace that resulted in a failure to
complete tasks in a timely manner.
In March 2008, Dr. Eric Feldman, to whom Garrison had
been sent for a consultation, remarked that Garrison had been
experiencing neck and back pain “for the past year,” and that
she had suffered “a fairly severe pain throughout the neck,
scapular area, thoracic and lumbar spine.” Feldman observed
that neither physical therapy nor a cervical epidural steroid
3
In February 2008, an EEG test largely ruled out seizures as the cause
of Garrison’s spells of jerking, stuttering, confusion, and hallucinations.
GARRISON V. COLVIN 9
injection had afforded Garrison much relief, that her burning
pain remained constant, and that she was still experiencing
tingling in both hands and leg pain. His physical examination
revealed tenderness over the cervical paraspinal musculature
and facet joints, as well as over the suprascapular and
periscapular musculature. Noting limited cervical range of
motion, a variety of spinal issues, and limited rotation
bilaterally, Feldman stated that his impressions included
fibromyalgia, central hyperalgesia, and disc protrusions and
disc space narrowing.
Over the next two months, Garrison’s pain improved
somewhat. She had a hysterectomy, some of her other
symptoms abated, and a transforaminal epidural steroid
injection temporarily reduced her back and leg pain.
However, she continued to experience symptoms of
radiculopathy, including sharp pain in her neck, arms, and
shoulders.
Wang’s records show that, by June 2008, Garrison, who
had stopped a few of her medications, was again experiencing
numbness, tingling, and sharp pain in her hands, arms, and
neck. She had also experienced a “seizure” on June 15, 2008.
Wang instructed Garrison to resume some of her medications
and ordered her not to drive for at least three months. A few
weeks later, Garrison once again experienced a “seizure,” and
reported to Wang that, despite the Percocet that she was
taking every six hours, she was still in pain. By August 2008,
Garrison was again experiencing intense pain in her neck and
right shoulder—and received only partial, short-lived relief
from the Percocet.
In September 2008, Feldman performed another epidural
steroid shot, but this time the shot led to only a few days of
10 GARRISON V. COLVIN
relief from the again-chronic burning back pain, which soon
started shooting down from Garrison’s lower back into her
thighs and legs. This and other symptoms led Garrison to
have trouble keeping her balance. Wang prescribed more
Percocet and also told Garrison to start using a rolling walker
for her gait instability. Garrison saw little improvement in
the months that followed. In October 2008, even with
Percocet three times a day for pain, she reported feeling a lot
of pain radiating from the right side of her lower back into her
right leg, causing numbness and tingling. Then, in November
2008, Wang noted a mild limp, tension headaches escalating
to migraines, and ongoing cervical and lumbar radiculopathy.
After a short-lived respite from the back pain (though not
other symptoms) in December 2008—the result of another
epidural shot—Garrison again reported severe back pain in
January 2009. Feldman’s records reveal that, by this point,
Percocet had become less effective, providing partial relief
for only a few hours per dose. Garrison’s neck continued
“bothering her significantly,” and the pain from her neck
started radiating into her occipital region. Garrison was
started on new pain medications, including MS Contin, but
continued to feel numbness and tingling in her arms and legs.
These symptoms, as well as severe headaches, persisted into
February 2009.
In April 2009, Wang noted that Garrison’s headaches had
finally ceased, but also observed that she had experienced an
increase in her back pain and that this pain was still radiating
down her legs. Garrison told Wang that it felt like her feet
“are on fire,” adding that she could not walk or stand for a
long time and that her feet were tender to the touch. Wang
opined that Garrison’s “pain is affecting her ability to
function.”
GARRISON V. COLVIN 11
Garrison’s last medical record is from June 2009. In it,
Wang states as follows: “The patient states she [continues]
to have constant pain to her lower back and neck rated as 6 on
0–10 pain scale. She continues to have numbness and
tingling to her bilateral lower extremities, greater on the right.
The patient states she continues to have some lower extremity
weakness. She states her pain is aggravated by sitting and
standing for long periods.” Wang once again recorded his
impression that Garrison’s pain “is affecting her ability to
function,” noting that her drugs were not providing adequate
relief.
B. Mental Health Issues
Throughout the relevant time period, Garrison struggled
with a variety of diagnosed mental impairments, including
bipolar disorder, anxiety, bouts of insomnia, auditory and
visual hallucinations, and paranoia. Her treating medical
caretakers also came to view her “seizures” (sometimes
called “pseudo-seizures” in her treatment records) as the
result of psychiatric issues.
In September 2007, Garrison visited Nurse Practitioner
Susan Anderson for the first time. Anderson, who would
become Garrison’s primary psychiatric care giver, noted that
Garrison suffered from insomnia, anxiety, depressive
symptoms, nightmares, and flashbacks. Anderson diagnosed
post-traumatic stress disorder and possible bipolar disorder.
She also recorded a Global Assessment of Function (GAF)
score of 50.4 Later that month, Anderson noted that Garrison
4
“A GAF score is a rough estimate of an individual’s psychological,
social, and occupational functioning used to reflect the individual’s need
for treatment.” Vargas v. Lambert, 159 F.3d 1161, 1164 n.2 (9th Cir.
12 GARRISON V. COLVIN
had recently suffered another “seizure” and, more important,
that Garrison was having trouble with her medication.
Garrison stated that she felt electric shocks going through her
body, and added that she alternated between feeling very
depressed and feeling like she had superpowers that would let
her lift piles of wood in the heat.
Two months later, in November 2007, Dr. Wayne General
examined Garrison at the behest of a state agency. He
concluded that her full scale IQ was 77, placing her in the 6th
percentile, and observed that “Karen is currently functioning
in the range of borderline intelligence.” General then noted
that Garrison’s “overall short-term memory is in the
borderline range” and that her “concentration is in the low
average range.” When subjected to further tests, Garrison
performed in “the lower average range” on simple tasks and
“very poorly” on more complex tasks requiring concentration.
1998). According to the DSM-IV, a GAF score between 41 and 50
describes “serious symptoms” or “any serious impairment in social,
occupational, or school functioning.” A GAF score between 51 to 60
describes “moderate symptoms” or any moderate difficulty in social,
occupational, or school functioning.” Although GAF scores, standing
alone, do not control determinations of whether a person’s mental
impairments rise to the level of a disability (or interact with physical
impairments to create a disability), they may be a useful measurement.
We note, however, that GAF scores are typically assessed in controlled,
clinical settings that may differ from work environments in important
respects. See, e.g., Titles II & XVI: Capability to Do Other Work-
Themedical-Vocational Rules As A Framework for Evaluating Solely
Nonexertional Impairments, SSR 85-15, 1983-1991 Soc. Sec. Rep. Serv.
343 (S.S.A 1985) (“The mentally impaired may cease to function
effectively when facing such demands as getting to work regularly, having
their performance supervised, and remaining in the workplace for a full
day.”).
GARRISON V. COLVIN 13
Assessing Garrison’s overall mental well-being, General
made a number of diagnoses:
Axis I: 296.52 Bipolar I Disorder, Most
Recent Episode Depressed,
Moderate
995.50 Victim of Physical or
Sexual Abuse as a Child
995.81 Victim of Physical or
Sexual Abuse as an Adsult
309.81 Posttraumatic Stress
Disorder, Acute, Chronic, Delayed
Onset
304.80 Polysubstance
Dependence, Alcohol,
Amphetamines, Cannabis and
Cocaine in Full, Sustained
Remission by self-report
Axis II: V62.89 Borderline Intellectual
Functioning, by examination
Axis III: Overweight, joint disease (neck
and back) and arthritis, by referral
history; migraine cephalgia by
self-report
General concluded that Garrison’s “prognosis for returning to
work is currently poor, as she had difficulty maintaining
concentration and manifested a borderline short-term
14 GARRISON V. COLVIN
memory. She did not have sufficient emotional control, and
broke into tears three times during test administration. Her
ability to perform work-related tasks is currently inadequate
based on cognitive functions such as attention, concentration,
processing speed and short-term memory.”
In December 2007, Anderson noted that Garrison’s mood
was “unstable,” that Garrison was dealing with several family
issues, and that Garrison was experiencing intense anxiety
and severe racing thoughts. Anderson assessed a GAF score
of 55, with a continued diagnosis of Bipolar Disorder II and
PTSD. Garrison’s attention and concentration, as well as her
insight and judgment, were only “fair.” Garrison’s condition
did not materially change over the next few months. In
January 2008, despite slight improvement due to use of
Abilify, Anderson’s records show that Garrison remained
anxious and deeply paranoid, with a GAF score of 55–60.
That month, Dr. Adrianne Gallucci, Psy.D., a state agency
consultant, reviewed some of Anderson’s medical records and
filled out a check-box form to state her conclusions. Gallucci
opined that Garrison’s impairments were “severe but not
expected to last 12 months,” and identified “[c]oexisting
[n]onmental [i]mpairment(s) that require referral to another
medical specialty.” Gallucci checked off the boxes for
affective disorders, mental retardation, and anxiety-related
disorders. Under affective disorders, Gallucci marked bipolar
disorder. In a summary section, Gallucci checked boxes for
“mild” degree of limitation of function in “restriction of
activities of daily living” and “difficulties in maintaining
social functioning.” Gallucci checked boxes for “moderate”
degree of difficulties in “maintaining concentration,
persistence, or pace.” In a brief explanation section, Gallucci
remarked that Garrison had experienced a good initial
GARRISON V. COLVIN 15
response to some medication and had started mental health
treatment, and for these reasons was not likely to suffer an
impairment lasting more than 12 months.
Anderson’s records show that, in February 2008,
Garrison’s GAF dropped to 55. In her visit, Garrison
reported hearing ghosts and spirits calling her name, a variety
of other auditory and visual hallucinations, nightmares,
severe anxiety, obsessive preoccupations, and persistent
insomnia. Her attention and concentration, as well as her
insight and judgment, remained only “fair.”
That month, Anderson completed a “Medical Assessment
of the Patient’s Ability to Perform Work Related Activity”
(“the 2008 Assessment”). In it, Anderson reported a
moderate impairment in Garrison’s ability to relate to other
people; to perform daily activities; to understand, carry out,
and remember instructions; to respond appropriately to
supervision; to respond appropriately to co-workers; and to
perform varied tasks. Anderson reported moderately severe
constriction of interests, including in Garrison’s ability to
respond to customary work pressures; ability to perform
complex tasks; ability to complete a normal
workday/workweek without interruptions from
psychologically based symptoms; and ability to perform at a
consistent pace without an unreasonable number/length of
rest periods. Anderson checked “Yes” when asked, “Have
the above limitations lasted or can they be expected to last for
12 months or longer?” Anderson also filled out the comment
section of the form, writing as follows: “Client has poor
coping skills, auditory hallucinations, unstable moods, and
severe anxiety. These psychiatric symptoms are complicated
by multiple medical problems.”
16 GARRISON V. COLVIN
In July 2008, after a short respite from some of her more
severe mental health problems—though she did experience at
least one “seizure” during that respite5—Garrison again
returned to Anderson with hallucinations, panic attacks,
insomnia, racing thoughts, blackouts, unstable mood, and
paranoia. Anderson assessed GAF scores of 45–50 and
determined that Garrison’s attention and concentration, as
well as her insight and judgment, were “limited.” One month
later, Garrison collapsed and then fainted in the middle of a
counseling session, and continued to report auditory
hallucinations, anxiety, and racing thoughts. Anderson’s
records show that Garrison’s attention and concentration, as
well as her insight and judgment, remained “limited.”
Garrison’s GAF score dropped again in September 2008,
this time to 50, and Anderson again recorded issues including
hallucinations, insomnia, anxiety, and racing thoughts. By
late September, Garrison’s issues expanded to include
overwhelming depression and paranoia. Throughout this
period, her attention and concentration, as well as her insight
and judgment, remained “limited.” Then, from November
2008 to February 2009, Garrison’s mental health improved
somewhat. Anderson recorded GAF scores ranging from 55
to 61 in this period, noting that, although Garrison remained
anxious and was at times tearful, treatment was helping to
alleviate Garrison’s more severe symptoms, including her
panic attacks, paranoia, and hallucinations.
5
From February 2008 to June 2008, while on a break from some of her
medications, Garrison worked four to five times as an “on call” teacher’s
aide and also worked a few hours per day as a bus monitor. She was fired
by the school district after having a “seizure” on the bus.
GARRISON V. COLVIN 17
As before, though, this short-lived and limited uptick in
Garrison’s mental health soon ended. By April 2009,
Garrison was suicidal and panicked, again reported racing
thoughts and pseudo-seizures, and again stated that she was
having trouble with—and had stopped some of—her
medications. Late in April 2009, Anderson assessed a GAF
score of 50 and noted that Garrison was displaying
hypomanic symptoms, sleeping less, and had only “partial”
insight and judgment.
Garrison’s GAF score remained 50 in May 2009. That
month, Anderson observed that Garrison had fainted on
several occasions when upset, was still experiencing insomnia
and racing thoughts, and still had only partial insight and
judgment. In June 2009, Garrison felt a bit better, but was
still “up and down.” Her GAF score remained 50, an
indication of “serious symptoms” or “serious impairment in
social, occupational, or school functioning,” she was still
troubled by bouts of racing thoughts and anxiety, and
Anderson was still trying, apparently with only mixed
success, to adjust her medications.
II
At the June 14, 2009 hearing before the ALJ, Garrison
testified about how her physical and mental impairments
affect her daily life. A VE also testified, mainly by
answering a series of hypothetical questions.
A. Garrison’s Testimony
At the June 14, 2009 hearing, Garrison testified that she
stopped working in April 2007 because she was “having
problems with [her] back and [her] neck,” rising to the level
18 GARRISON V. COLVIN
of “severe back pain.” She described her neck pain as a “real
sharp, burning pain,” that grew worse when she slept wrong,
picked stuff up, or bent over, and that radiated into her arms.
She added that neither physical therapy nor injections had
helped her neck pain; to the contrary, the neck injections had
caused an allergic reaction that required hospitalization. She
testified that her back pain is sharp, nagging, and constant,
that it shoots down to the back sides of her legs, that she
cannot bend down to lift or pick things up unless she is
sitting, and that the pain is exacerbated by standing or sitting
for more than 20 to 30 minutes. She added that the pain is
often so bad that she must lie down every three to four hours,
that she naps three hours per day because she is tired from the
pain, and that the pain prohibits her from picking up her
daughter, her laundry, or heavy bags of groceries. Garrison
stated that physical therapy did not alleviate her back pain
and that the epidural injections she had received helped for
only a short while. She also stated that she had gained one
hundred pounds from her medication.
Turning to her mental impairments, Garrison testified, “I
have a lot of anxiety” and “a lot of ups and downs and
depression.” She stated that she experiences panic attacks
that sometimes cause her to pass out, and that these attacks
are triggered by tasks like grocery shopping alone. She
avoids talking to people to prevent stress, occasionally
experiences suicidal thoughts, and, when she is feeling
depressed, spends days alone in her room with the light out.
When she feels “up,” however, she cannot sleep for days at a
time and experiences auditory hallucinations in which voices
criticize her for ruining her life. Garrison noted that her
“seizure” condition has improved somewhat since she started
taking Prozac.
GARRISON V. COLVIN 19
Garrison testified that her mother takes care of her,
including taking her to church, to doctors, and to the grocery
store, and doing her laundry. She stated that, although she
can carry a five pound bag of potatoes, she cannot carry a ten
pound bag (or a watermelon), and that she always carries the
lightest groceries. Describing a typical day, Garrison stated:
“Just get up, feed my daughter, call Griffey the turtle.
Sometimes I water the plants. Get myself dressed, get her
dressed. Then by the time lunchtime comes around, I’m
down for a good two, three hours. And then I’ll get back up
and make sure she’s had dinner. My mom watches her while
I’m sleeping. I’ll make sure she has dinner, and then usually
I’m back to sleep by 7:30, 8:00.”
B. The Vocational Expert’s Testimony
The VE answered a series of questions posed by the ALJ
and by Garrison’s lawyer about a hypothetical person’s
ability either to perform past relevant work or sustain the
demands of work.
The ALJ first posed this hypothetical question:
I’m asking you to consider a hypothetical
person the same age, education, and work
history as Ms. Garrison. The first question is,
this hypothetical person could perform work
frequently lifting and carrying 10 pounds,
occasionally 20 pounds; could stand and/or
walk with normal breaks about six out of eight
hours; sit with normal breaks about six out of
eight hours; no limits in pushing or pulling;
can never climb ladders, ropes, or scaffolds;
can occasionally climb ramps and stars;
20 GARRISON V. COLVIN
occasionally stoop, kneel, crouch, and crawl.
This person can occasionally reach overhead.
The person must avoid concentrated exposure
to fumes, odors, dust, gasses, poor ventilation,
and hazards. This person is restricted to
performing simple work. Could this
hypothetical person perform any of the past
relevant work?
The VE replied that such a person could perform the past
relevant work of “[t]he cashier/checker, bus monitor,
teacher’s aide, and the pizza maker.”
Next, the ALJ posed this question to the VE: “I’d ask you
to consider the same hypothetical person. This person
frequently had deficiencies of concentration, persistence, or
pace resulting in failure to complete tasks in a timely manner.
Would that person be able to sustain the mental demands of
work?” The VE replied, “No.”
Garrison’s lawyer then posed the following hypothetical
question:
[P]lease assume an individual the claimant’s
age, education, and work experience, but
assume they were limited as follows. . . . The
person had a moderately severe limitation,
and that’s defined as an impairment which
seriously affects the ability to function, and
that would be in the following areas; ability to
understand, carry out, and remember
instructions; respond appropriately to
supervision; respond, [sic.] respond
appropriate[ly] to co-workers; respond to
GARRISON V. COLVIN 21
customary work pressures; and to complete a
normal work day and work week without
interruptions from psychologically based
symptoms; to perform at a consistent pace
without an unreasonable number and length of
rest periods. Do you agree that the
cumulative effect of those moderately severe
limitations would preclude both the claimant’s
past relevant work and, and all other works?
The VE replied, “I would.”
Finally, Garrison’s lawyer asked, “Given the limitations
testified to [by Garrison], were they credible, would you
agree those would preclude both the claimant’s past relevant
work and all other work?” The VE replied, “Yes.”
III
On October 29, 2009, the ALJ issued a decision
concluding that Garrison was not disabled within the meaning
of the Social Security Act. At step one of the five-step
sequential evaluation process,6 the ALJ determined that
6
We describe the five-step sequential process at greater length infra.
For a summary of the process, see Kennedy v. Colvin, 738 F.3d 1172,
1175 (9th Cir. 2013) (“The five-step process for disability determinations
begins by asking whether a claimant is engaged in ‘substantial gainful
activity’ and considering the severity of the claimant’s impairments. See
20 C.F.R. § 416.920(a)(4)(i)–(ii). If the inquiry continues beyond the
second step, the third step asks whether the claimant’s impairment or
combination of impairments meets or equals a listing under 20 C.F.R. pt.
404, subpt. P, app. 1 and meets the duration requirement. See id.
§ 416.920(a)(4)(iii). If so, the claimant is considered disabled and benefits
are awarded, ending the inquiry. See id. If the process continues beyond
22 GARRISON V. COLVIN
Garrison had not engaged in substantial gainful activity since
April 17, 2007, the alleged onset date.7 At step two, the ALJ
found that Garrison had the following medically determinable
severe impairments: “borderline intellectual functioning,
bipolar disorder, posttraumatic stress disorders, polysubstance
dependence (in sustained remission), degenerative disc
disease of the lumbar, cervical and thoraic spine, obseity, and
asthma.” At step three, the ALJ concluded that Garrison did
not meet or medically equal any of the listed impairments in
20 C.F.R. Part 404, Subpart P, Appendix 1. At step four, the
ALJ determined that Garrison has the residual functional
capacity to perform the exertional requirements of light work
as defined in 20 C.F.R. § 404.1567(a), adding that, due to
various limitations, Garrison is limited to simple work. She
concluded that Garrison is capable of performing past
relevant work as a school bus monitor, cashier/checker, and
pizza maker. Accordingly, the ALJ determined that Garrison
had not been under a disability from April 17, 2007 through
October 29, 2009.
In assessing Garrison’s residual functional capacity, the
ALJ started by discrediting part of Garrison’s testimony. The
ALJ concluded that, while Garrison’s medically determinable
impairments could reasonably be expected to produce the
alleged symptoms, Garrison’s “statements concerning the
the third step, the fourth and fifth steps consider the claimant’s ‘residual
functional capacity’ in determining whether the claimant can still do past
relevant work or make an adjustment to other work. See id.
§ 416.920(a)(4)(iv)–(v).”).
7
The ALJ noted that Garrison had worked four to five times as a
teacher’s aide and part time as a bus monitor in early 2008, but concluded
that “[t]his work activity does not rise to the level of presumptive monthly
SGA under the Regulations.”
GARRISON V. COLVIN 23
intensity, persistence, and limiting effects of these symptoms
are not credible to the extent they are inconsistent with
finding that the claimant has no severe impairment or
combination of impairments . . . .” The ALJ reasoned that,
although Garrison had suffered mental impairments rendering
her “non functional for a good part of the period from April
2007 to the end of 2007,” Garrison’s mental health had
improved with medication. The ALJ added that Garrison’s
mental health deteriorated when she stopped taking her
medication, noted that Garrison’s GAF score had reached 60
in November 2008, and pointed out that Garrison told
Anderson in February 2009 that she was stable with her
medications.
Turning to Garrison’s testimony concerning her physical
impairments, the ALJ stated that “the claimant physically
improved in 2007 and 2008 with conservative medical
treatment, i.e., physical therapy and epidural injections.” The
ALJ also observed that Garrison helped prepare meals,
cleaned her room, talked on the phone frequently, and helped
care for her own daughter, activities that the ALJ deemed
inconsistent with Garrison’s allegations of disability. In sum,
the ALJ remarked that “there may have a [sic] short time
during the adjudicatory period in which the claimant has been
non-functional,” but “most of these times were when the
claimant was either not taking her psychotropic medications
or before she had undergone physical therapy for her
neck/back pain.”8
8
Without concluding that Garrison was a malingerer, the ALJ noted a
single inconsistency in Garrison’s testimony: whereas Garrison claimed
to have gained one hundred pounds while on medication, the medical
records showed that Garrison had gained only approximately twenty
pounds.
24 GARRISON V. COLVIN
Next, the ALJ considered the medical evidence. Citing
only Wang’s PFC Questionnaire from February 2008, and
Anderson’s 2008 Assessment (also from February 2008), the
ALJ “assign[ed] little weight to the medical opinions
reflected in these assessments, as Dr. Wang provided no
rationale for his medical conclusions and Ms. Anderson, as a
nurse practitioner, is not a psychiatrist or psychologist.” The
ALJ added: “In addition, their findings do not comport with
the improvement the claimant consistently showed when she
adhered to her medication regimen. The same critique is
applied to Ms. Anderson’s most recent medical source
statement dated June 23, 2009.” After rejecting Wang and
Anderson’s conclusions, the ALJ gave substantial weight to
the conclusions of the state agency consultants, Griffith and
General, regarding Garrison’s physical and mental residual
functional capacity. In the ALJ’s view, “their findings
limited the claimant to range [sic] of light, simple work.”
Matching this residual functional capacity assessment to the
hypothetical questions posed to the VE, the ALJ concluded
that Garrison could work as a bus monitor, pizza maker, and
cashier/checker, and therefore rejected her application.
IV
After exhausting administrative remedies, Garrison
appealed to the district court, which concluded that her case
should be remanded to the ALJ for further proceedings. In
reaching that result, the district court first concluded that the
“panoply of reasons” given by the ALJ for rejecting
Garrison’s symptom testimony was sufficiently specific,
clear, and convincing.
The district court then considered the ALJ’s decision to
give substantial weight to the state agency consultants,
GARRISON V. COLVIN 25
Griffith and General, rather than to Garrison’s treating
medical caretakers, Wang and Anderson. Focusing, like the
ALJ, on the two check-box forms that Wang and Anderson
completed in February 2008, the district court stated that the
ALJ had “provided only a perfunctory explanation of her
reasons for not giving significant weight to the opinions of
those who had been treating Claimant.” Specifically, with
respect to Wang, the ALJ failed to address “any of the
particulars of [Wang’s] lengthy treatment of Claimant and
numerous treatment notes,” said “nothing about whether Dr.
Wang’s opinion, which was based on the effect of Claimant’s
pain, is consistent or inconsistent with other evidence
regarding Claimant’s pain,” and offered only a “conclusory”
discussion of his treatment records. With respect to
Anderson, the ALJ did not recognize that a nurse practitioner
is an acceptable medical source under 20 C.F.R.
§ 404.1523(d) and failed to consider the factors set forth in 20
C.F.R. § 404.1527(c)9 in analyzing her opinion. The district
court believed that, as a result of these errors, it was “unable
to assess whether the ALJ properly accorded little weight” to
Wang and Anderson’s opinions.
Turning to Griffith and General, the district court first
noted that “Griffith had no medical records from any treating
or other examining physician to review,” and agreed with
Garrison that “it is not clear from the ALJ’s decision that she
had an adequate basis for using Dr. Griffith’s one-time
examination to displace the opinion of a treating physician
such as Dr. Wang.” The district court added that the ALJ had
misunderstood General’s report which, read properly, “adds
to the balance in favor of finding Claimant disabled, although
9
At the time of the district court’s ruling, the relevant factors were set
forth in 20 C.F.R. § 404.1527(d).
26 GARRISON V. COLVIN
the fact that the evaluation was a snapshot of her condition at
a particular point in time renders the evaluation standing
alone an insufficient basis to determine that Claimant had a
disability of the requisite duration.”
Ultimately, the district court concluded that it lacked a
sufficient explanation from the ALJ of why she declined to
give substantial weight to the opinions of Wang and
Anderson, and why she instead credited Griffith. The district
court therefore remanded to the Commissioner, stating that,
if the opinions of Wang and Anderson were properly given
little weight, Garrison would not be entitled to an award of
benefits.
Garrison timely appealed this ruling, contending that the
district court abused its discretion in remanding to the
Commissioner for further proceedings instead of remanding
for a calculation and award of benefits.
DISCUSSION
I
42 U.S.C. § 405(g) provides for judicial review of the
Social Security Administration’s disability determinations:
“The court shall have power to enter . . . a judgment
affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding
the cause for a rehearing.”
An ALJ’s disability determination should be upheld
unless it contains legal error or is not supported by substantial
evidence. See Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d
1050, 1052 (9th Cir. 2006); 42 U.S.C. §§ 405(g), 1383(c)(3).
GARRISON V. COLVIN 27
“‘Substantial evidence’ means more than a mere scintilla, but
less than a preponderance; it is such relevant evidence as a
reasonable person might accept as adequate to support a
conclusion.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th
Cir. 2007). “[W]e must consider the entire record as a whole,
weighing both the evidence that supports and the evidence
that detracts from the Commissioner’s conclusion, and may
not affirm simply by isolating a specific quantum of
supporting evidence.” Id. (citations and quotation marks
omitted). “The ALJ is responsible for determining
credibility, resolving conflicts in medical testimony, and for
resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035,
1039 (9th Cir. 1995). Where “the evidence can reasonably
support either affirming or reversing a decision, we may not
substitute our judgment for that of the [ALJ].” Id. (citation
omitted). We review only the reasons provided by the ALJ
in the disability determination and may not affirm the ALJ on
a ground upon which he did not rely. See Connett v.
Barnhart, 340 F.3d 871, 874 (9th Cir. 2003).
“[A] district court’s decision to affirm, reverse or modify
a determination of the Social Security Administration is
reviewed de novo on appeal. We also review de novo a
district court’s determination to remand a case to the
Commissioner.” Harman v. Apfel, 211 F.3d 1172, 1174 (9th
Cir. 2000) (citation omitted).
II
We conclude that the ALJ erred in rejecting Wang and
Anderson’s medical opinions, that she misunderstood
General’s opinion of Garrison’s impairments, and that she
failed to meet the requirement of offering specific, clear, and
28 GARRISON V. COLVIN
convincing reasons for discrediting Garrison’s symptom
testimony.
A. The Five-Step Sequential Process
The Social Security Act defines “disability” as the
inability to engage “in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period
of not less than 12 months.” 42 U.S.C. § 1382c(a)(3)(A). A
claimant “shall be determined to be under a disability only if
his physical or mental impairment or impairments are of such
severity that he is not only unable to do his previous work but
cannot, considering his age, education, and work experience,
engage in any other kind of substantial gainful work which
exists in the national economy, regardless of whether such
work exists in the immediate area in which he lives, or
whether a specific job vacancy exists for him, or whether he
would be hired if he applied for work.” § 1382c(a)(3)(b).
ALJs apply a five-step evaluation process to determine
whether a claimant qualifies as disabled. Ludwig v. Astrue,
681 F.3d 1047, 1048 n.1 (9th Cir. 2012). That procedure is
set forth at 20 C.F.R. § 404.1520(a)(4):
(4) The five-step sequential evaluation
process. The sequential evaluation process is
a series of five “steps” that we follow in a set
order . . . If we can find that you are disabled
or not disabled at a step, we make our
determination or decision and we do not go on
to the next step. If we cannot find that you are
disabled or not disabled at a step, we go on to
GARRISON V. COLVIN 29
the next step. 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. These are the five steps we follow:
(i) At the first step, we consider your work
activity, if any. If you are doing
substantial gainful activity, we will find
that you are not disabled . . .
(ii) At the second step, we consider the
medical severity of your impairment(s). If
you do not have a severe medically
determinable physical or mental
impairment that meets the duration
requirement in § 404.1509, or a
combination of impairments that is severe
and meets the duration requirement, we
will find that you are not disabled . . .
(iii) At the third step, we also consider the
medical severity of your impairment(s). If
you have an impairment(s) that meets or
equals one of our listings in appendix 1 of
this subpart and meets the duration
requirement, we will find that you are
disabled . . .
(iv) At the fourth step, we consider our
assessment of your residual functional
capacity and your past relevant work. If
30 GARRISON V. COLVIN
you can still do your past relevant work,
we will find that you are not disabled . . .
(v) At the fifth and last step, we consider
our assessment of your residual functional
capacity and your age, education, and
work experience to see if you can make an
adjustment to other work. If you can make
an adjustment to other work, we will find
that you are not disabled. If you cannot
make an adjustment to other work, we will
find that you are disabled . . .
20 C.F.R. § 404.1520(a). “The burden of proof is on the
claimant at steps one through four, but shifts to the
Commissioner at step five.” Bray v. Comm’r of Soc. Sec.
Admin., 554 F.3d 1219, 1222 (9th Cir. 2009).
At steps four and five, the ALJ determines a claimant’s
residual functional capacity (“RFC”). 20 C.F.R.
§ 416.920(e). RFC is “what [one] can still do despite [one’s]
limitations.” 20 C.F.R. § 416.945(a)(1). It is “based on all
the relevant medical and other evidence in [the] case record.”
Id. If a claimant has multiple impairments, they are all
included in the assessment. § 416.920(a)(2). The ALJ must
consider a claimant’s physical and mental abilities,
§ 416.920(b) and (c), as well as the total limiting effects
caused by medically determinable impairments and the
claimant’s subjective experiences of pain, § 416.920(e). The
RFC is used at step four to determine if a claimant can do
past relevant work and at step five to determine if a claimant
can adjust to other work. Id.
GARRISON V. COLVIN 31
If, at step four, “a claimant shows that he or she cannot
return to his or her previous job, the burden of proof shifts to
the Secretary to show that the claimant can do other kinds of
work.” Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988).
Thus, “[a]t step five, the ALJ can call upon a [VE] to testify
as to: (1) what jobs the claimant, given his or her [RFC],
would be able to do; and (2) the availability of such jobs in
the national economy.” Tackett v. Apfel, 180 F.3d 1094, 1101
(9th Cir. 1999). The ALJ may pose hypothetical questions to
the expert that “set out all of the claimant’s impairments” for
the VE’s consideration. Gamer v. Secretary of Health and
Human Servs., 815 F.2d 1275, 1279 (9th Cir. 1987). “The
ALJ’s depiction of the claimant’s disability must be accurate,
detailed, and supported by the medical record.” Tackett,
180 F.3d at 1101 (citation omitted). “The testimony of a
[VE] is valuable only to the extent that it is supported by
medical evidence” and has “no evidentiary value if the
assumptions in the hypothetical are not supported by the
record.” Magallanes v. Bowen, 881 F.2d 747, 756 (9th Cir.
1989) (citations omitted). “The [VE] then ‘“translates [these]
factual scenarios into realistic job market probabilities” by
testifying on the record to what kinds of jobs the claimant still
can perform and whether there is a sufficient number of those
jobs available in the claimant’s region or in several other
regions of the economy to support a finding of “not
disabled.”’” Tackett, 180 F.3d at 1101 (citations omitted)
(second alteration in the original).
32 GARRISON V. COLVIN
B. The ALJ Erred in Assigning Little Weight to
Wang and Anderson’s Opinions, and
Misunderstood General’s Opinion
1. Applicable Law
“In disability benefits cases . . . physicians may render
medical, clinical opinions, or they may render opinions on the
ultimate issue of disability—the claimant’s ability to perform
work.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)
(citation omitted). “In conjunction with the relevant
regulations, we have . . . developed standards that guide our
analysis of an ALJ’s weighing of medical evidence.” Ryan v.
Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).
Specifically, we “distinguish among the opinions of three
types of physicians: (1) those who treat the claimant (treating
physicians); (2) those who examine but do not treat the
claimant (examining physicians); and (3) those who neither
examine nor treat the claimant (nonexamining physicians).”
Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). “As a
general rule, more weight should be given to the opinion of
a treating source than to the opinion of doctors who do not
treat the claimant.”10 Id. (citing Winans v. Bowen, 853 F.2d
643, 647 (9th Cir. 1987)). While the opinion of a treating
physician is thus entitled to greater weight than that of an
examining physician, the opinion of an examining physician
is entitled to greater weight than that of a non-examining
10
See also 20 C.F.R. § 404.1527(c)(2) (“If we find that a treating
source’s opinion on the issue(s) of the nature and severity of your
impairment(s) is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in your case record, we will give it controlling
weight.”).
GARRISON V. COLVIN 33
physician. See Ryan, 528 F.3d at 1198. “The weight afforded
a non-examining physician’s testimony depends ‘on the
degree to which [he] provide[s] supporting explanations for
[his] opinions.’” Id. (quoting § 404.1527(d)(3)).
“If a treating or examining doctor’s opinion is
contradicted by another doctor’s opinion, an ALJ may only
reject it by providing specific and legitimate reasons that are
supported by substantial evidence.”11 Id. This is so because,
even when contradicted, a treating or examining physician’s
opinion is still owed deference and will often be “entitled to
the greatest weight . . . even if it does not meet the test for
controlling weight.” Orn v. Astrue, 495 F.3d 625, 633 (9th
Cir. 2007). An ALJ can satisfy the “substantial evidence”
requirement by “setting out a detailed and thorough summary
of the facts and conflicting clinical evidence, stating his
interpretation thereof, and making findings.” Reddick,
157 F.3d at 725. “The ALJ must do more than state
conclusions. He must set forth his own interpretations and
explain why they, rather than the doctors’, are correct.” Id.
(citation omitted).
Where an ALJ does not explicitly reject a medical opinion
or set forth specific, legitimate reasons for crediting one
medical opinion over another, he errs. See Nguyen v. Chater,
11
Social Security regulations provide that, when a treating source’s
opinions are not given controlling weight, ALJs must apply the factors set
forth in 20 C.F.R. § 404.1527(c)(2)(i–ii) and (c)(3–6) in determining how
much weight to give each opinion. These factors are length of the
treatment relationship and the frequency of examination,
§ 404.1527(c)(2)(i), nature and extent of the treatment relationship,
§ 404.1527(c)(2)(ii), “supportability,” § 404.1527(c)(3), consistency,
§ 404.1527(c)(4), specialization, § 404.1527(c)(5), and other factors that
tend to support or contradict the opinion, § 404.1527(c)(6).
34 GARRISON V. COLVIN
100 F.3d 1462, 1464 (9th Cir. 1996). In other words, an ALJ
errs when he rejects a medical opinion or assigns it little
weight while doing nothing more than ignoring it, asserting
without explanation that another medical opinion is more
persuasive, or criticizing it with boilerplate language that fails
to offer a substantive basis for his conclusion. See id.
2. Application of Law to Fact
In a ruling that the government does not contest on
appeal, the district court correctly concluded that the ALJ did
not offer specific and legitimate reasons supported by
substantial evidence for rejecting the testimony of Wang and
Anderson. The district court also correctly concluded that the
ALJ misunderstood General’s opinion regarding Garrison’s
mental health. We briefly address this issue because the
ALJ’s significant and numerous errors in evaluating the
medical opinion evidence help clarify why these opinions are,
in fact, worthy of substantial weight and why it is appropriate
to remand this case for an award of benefits.
In evaluating Wang’s testimony, the ALJ committed a
variety of egregious and important errors: (1) she entirely
ignored most of his treatment records, including reports from
Dr. Feldman, dozens of medical test results, and Wang’s own
treatment notes; (2) she failed to recognize that the opinions
expressed in check-box form in the February 2008 PFC
Questionnaire were based on significant experience with
Garrison and supported by numerous records, and were
therefore entitled to weight that an otherwise unsupported and
unexplained check-box form would not merit12; (3) she did
12
See 20 C.F.R. § 404.1527(d)(3) (“The better an explanation a source
provides for an opinion, the more weight we will give that opinion.”).
GARRISON V. COLVIN 35
not explicitly compare Wang’s records to other medical
evidence—and therefore failed to recognize that no other
treating or examining physician disagreed with Wang, and
that Griffin, the consultant whose views differed from
Wang’s, wrote his check-box report early in November 2007,
very early in Garrison’s course of treatment, and admitted in
his report that he lacked access to Garrison’s treatment
records and statements; (4) she did not evaluate Wang’s
records for internal consistency or inconsistency in his
description of Garrison’s symptoms, an evaluation that would
have disclosed consistent reports of burning, tingling, and
numbness radiating from her back and neck into her
extremities, causing weakness and intense pain13; (5) she did
not recognize that because Wang is a specialist, his opinion
is owed greater weight as a matter of regulation14; (6) more
generally, she failed to afford the deference to which Wang
was presumptively entitled under both Social Security
regulations and our precedent as Garrison’s treating
physician15; and (6) she manufactured a conflict with respect
to the outcome of treatment by asserting that Wang’s records
showed “consistent[]” improvement, when in fact they show
consistent cervical and lumbar radiculopathy that responded
only very briefly and partially to treatment.16
13
See 20 C.F.R. § 404.1517(c)(4).
14
See 20 C.F.R. § 404.1517(c)(5).
15
See 20 C.F.R. § 404.1517(c)(2).
16
Further, there is no evidence that anyone other than the ALJ thought
that Garrison’s reports to Wang were not credible; Wang never indicated
his belief that Garrison was exaggerating or lying in her self-reported pain
symptoms. Cf. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir.
2008).
36 GARRISON V. COLVIN
The ALJ also committed a variety of errors in evaluating
Anderson’s opinion evidence. Most important, she did not
recognize that Anderson, as a nurse practitioner, qualified as
an “other source[]” that “can provide evidence to establish an
impairment.” 20 C.F.R. § 404.1513(a) and (d)(1). Further,
the ALJ committed many of the same errors in assessing
Anderson’s reports that she did in assessing Wang’s. For
example, the ALJ assigned little weight to Anderson’s 2008
and 2009 summary reports, both of which stated that Garrison
suffered a variety of moderate and moderately severe
impairments expected to last more than a year, while
apparently failing to recognize that those reports were
supported by voluminous notes. The ALJ also manufactured
a conflict by identifying two or three reports of improvement
in Garrison’s mental health and asserting, without reference
to any other treatment records or any other explanation, that
Anderson’s considered conclusions about Garrison’s overall
prognosis merited little weight.17
Finally, the ALJ completely misunderstood General’s
report. Whereas the ALJ described it as supporting a finding
that Garrison is not disabled and is capable of “light, simple
work,”General expressly stated that Garrison’s “prognosis for
returning to work is currently poor,” “she does not have
sufficient emotional control,” and “her ability to perform
work-related tasks is currently inadequate based on cognitive
17
With respect to both Wang and Anderson’s opinions, the
Commissioner suggests that the ALJ was entitled to reject their opinions
on the ground that they were reflected in mere check-box forms—e.g.,
Wang’s 2008 PFC Questionnaire and Anderson’s 2008 and 2009
Assessments. This argument rests on a mistaken factual premise. The
check-box forms did not stand alone: they reflected and were entirely
consistent with the hundreds of pages of treatment notes created by Wang
and Anderson in the course of their relationship with Garrison.
GARRISON V. COLVIN 37
functions such as attention, concentration, processing-speed
and short-term memory.” General, an examining physician,
bolstered these conclusions with diagnoses including bipolar
disorder, PTSD, and borderline intellectual functioning. The
ALJ’s belief that General’s report weighed against a finding
of disability was mistaken.
C. The ALJ failed to offer specific, clear, and
convincing reasons for discrediting Garrison’s
symptom testimony
The ALJ discredited, to the extent it was inconsistent with
her finding that Garrison is not disabled, Garrison’s testimony
about the intensity, persistence, and pace of her symptoms.
In doing so, the ALJ erred.
1. Applicable Law
An ALJ engages in a two-step analysis to determine
whether a claimant’s testimony regarding subjective pain or
symptoms is credible. “First, the ALJ must determine
whether the claimant has presented objective medical
evidence of an underlying impairment ‘which could
reasonably be expected to produce the pain or other
symptoms alleged.’” Lingenfelter, 504 F.3d at 1035–36
(quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir.
1991) (en banc) (internal quotation marks omitted)). In this
analysis, the claimant is not required to 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). Nor must a claimant produce “objective medical
38 GARRISON V. COLVIN
evidence of the pain or fatigue itself, or the severity thereof.”
Id.
If the claimant satisfies the first step of this analysis, and
there is no evidence of malingering, “the ALJ can reject the
claimant’s testimony about the severity of her symptoms only
by offering specific, clear and convincing reasons for doing
so.”18 Smolen, 80 F.3d at 1281; see also Robbins v. Soc. Sec.
Admin., 466 F.3d 880, 883 (9th Cir. 2006) (“[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 credibility and stating clear and
convincing reasons for each.”). This is not an easy
requirement to meet: “The clear and convincing standard is
the most demanding required in Social Security cases.”
Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th
Cir. 2002).
2. Application of Law to Fact
Garrison testified about her physical and mental health.
We separately address the ALJ’s grounds for discrediting
each part of Garrison’s testimony.
a. Garrison’s Pain Testimony
The ALJ rejected Garrison’s pain testimony on two
grounds: (1) Garrison improved in 2007 and 2008 with the
“conservative” treatments of epidural injections and physical
therapy; and (2) Garrison engaged in daily activities including
18
The government’s suggestion that we should apply a lesser standard
than “clear and convincing” lacks any support in precedent and must be
rejected.
GARRISON V. COLVIN 39
talking on the phone, preparing meals, cleaning her room, and
helping to care for her daughter.
The first of these reasons is belied by the evidence and
must be rejected. Garrison’s medical records show that
physical therapy afforded her only partial and short-lived
relief of her lower back pain, and no effective relief for her
radiating neck pain.19 Turning to the epidural shots, Wang
and Feldman’s records make clear that epidural shots never
provided Garrison any relief for her neck pain, and that they
relieved Garrison’s back pain for only variable, brief periods
of time, ranging from a couple of months to a few days. The
other treatments prescribed by Wang, including pain pills,
caused side effects including intense sleepiness and
drowsiness and, even when taken several times per day,
provided only limited periods of relief from the otherwise-
constant pain.
In sum, there is no support in the record for the ALJ’s
belief that physical therapy and epidural shots alleviated
Garrison’s pain enough that her testimony regarding pain was
incredible. To the contrary, the record shows that, despite
Wang’s efforts, Garrison’s neck and back pain, which
radiated into her shoulders, arms, and legs, persisted largely
19
Garrison was forced to discontinue physical therapy early in 2007
because she could not afford it. See Smolen, 80 F.3d at 1284 (“Where a
claimant provides evidence of a good reason for not taking medication for
her symptoms, her symptom testimony cannot be rejected for not doing
so.” (citation omitted)). At no point in the treatment records did Wang or
Feldman indicate a belief that physical therapy, if resumed, would provide
Garrison with adequate relief.
40 GARRISON V. COLVIN
unabated after April 2007.20 Garrison’s testimony that she
was disabled by near-constant, intense pain is consistent with
this evidence, as is her testimony that she must take frequent
rests, has difficulty standing or sitting for more than 20 to 30
minutes, and cannot carry heavy items.
The ALJ’s other reason for discrediting Garrison’s
testimony was its supposed inconsistency with her reported
daily activities, which, again, included talking on the phone,
preparing meals, cleaning her room, and helping to care for
her daughter. The ALJ committed two errors here. First, she
mischaracterized Garrison’s testimony. Garrison repeatedly
emphasized that in performing many daily tasks, including
caring for her daughter, she was heavily assisted by her
mother. She also made clear that she is regularly prohibited
by her pain from engaging in activities such as doing laundry,
picking up her daughter, and carrying bags that weigh more
than a few pounds. Finally, Garrison testified that after
performing such activities, she often must rest, leading her to
nap several hours per day.
Second, the ALJ erred in finding that these activities, if
performed in the manner that Garrison described, are
inconsistent with the pain-related impairments that Garrison
described in her testimony. We have repeatedly warned that
ALJs must be especially cautious in concluding that daily
activities are inconsistent with testimony about pain, because
impairments that would unquestionably preclude work and all
the pressures of a workplace environment will often be
consistent with doing more than merely resting in bed all day.
See, e.g., Smolen, 80 F.3d at 1287 n.7 (“The Social Security
20
In any event, we doubt that epidural steroid shots to the neck and
lower back qualify as “conservative” medical treatment.
GARRISON V. COLVIN 41
Act does not require that claimants be utterly incapacitated to
be eligible for benefits, and many home activities may not be
easily transferable to a work environment where it might be
impossible to rest periodically or take medication.” (citation
omitted)); Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)
(“[M]any home activities are not easily transferable to what
may be the more grueling environment of the workplace,
where it might be impossible to periodically rest or take
medication.”). Recognizing that “disability claimants should
not be penalized for attempting to lead normal lives in the
face of their limitations,” we have held that “[o]nly if [her]
level of activity were inconsistent with [a claimant’s] claimed
limitations would these activities have any bearing on [her]
credibility.” Reddick v. Chater, 157 F.3d at 722 (citations
omitted); see also Bjornson v. Astrue, 671 F.3d 640, 647 (7th
Cir. 2012) (“The critical differences between activities of
daily living and activities in a full-time job are that a person
has more flexibility in scheduling the former than the latter,
can get help from other persons . . . , and is not held to a
minimum standard of performance, as she would be by an
employer. The failure to recognize these differences is a
recurrent, and deplorable, feature of opinions by
administrative law judges in social security disability cases.”
(citations omitted)).
Here, Garrison’s daily activities, as she described them in
her testimony, were consistent with her statements about the
impairments caused by her pain. The ability to talk on the
phone, prepare meals once or twice a day, occasionally clean
one’s room, and, with significant assistance, care for one’s
daughter, all while taking frequent hours-long rests, avoiding
any heavy lifting, and lying in bed most of the day, is
consistent with the pain that Garrison described in her
42 GARRISON V. COLVIN
testimony.21 It is also consistent with an inability to function
in a workplace environment. Accordingly, the supposed
inconsistencies between Garrison’s daily activities and her
testimony do not satisfy the requirement of a clear,
convincing, and specific reason to discredit Garrison’s
testimony regarding her pain-related impairments.
b. Garrison’s Mental Health Testimony
The ALJ discredited Garrison’s mental health testimony
mainly on the ground that the record showed that Garrison’s
condition had improved due to medication at a few points
between April 2007 and June 2009. The ALJ added that
some of Garrison’s mental impairments were caused by
Garrison going off her medication. These are not clear,
convincing, and specific grounds for rejecting Garrison’s
testimony that, since April 2007, she had suffered panic
attacks, “a lot of ups and downs and depression,” severe
anxiety, occasional suicidal thoughts, and bouts of paranoia
and mania—symptoms that caused major difficulties with
social functioning and responding to such stresses as
shopping unaccompanied for groceries.
As we have emphasized while discussing mental health
issues, it is error to reject a claimant’s testimony merely
because symptoms wax and wane in the course of treatment.
Cycles of improvement and debilitating symptoms are a
common occurrence, and in such circumstances it is error for
an ALJ to pick out a few isolated instances of improvement
21
It is also consistent with the mental health impairments that Garrison
described in her testimony—impairments that undoubtedly interacted with
her physical impairments in a manner that makes her testimony even more
credible.
GARRISON V. COLVIN 43
over a period of months or years and to treat them as a basis
for concluding a claimant is capable of working. See, e.g.,
Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001)
(“[The treating physician’s] statements must be read in
context of the overall diagnostic picture he draws. That a
person who suffers from severe panic attacks, anxiety, and
depression makes some improvement does not mean that the
person’s impairments no longer seriously affect her ability to
function in a workplace.”).22 Reports of “improvement” in
the context of mental health issues must be interpreted with
an understanding of the patient’s overall well-being and the
nature of her symptoms. See Ryan, 528 F.3d at 1200–01
(“Nor are the references in [a doctor’s] notes that Ryan’s
anxiety and depression were ‘improving’ sufficient to
undermine the repeated diagnosis of those conditions, or
[another doctor’s] more detailed report.”). They must also be
interpreted with an awareness that improved functioning
while being treated and while limiting environmental
stressors does not always mean that a claimant can function
effectively in a workplace. See, e.g., Hutsell, 259 F.3d at 712
(“We also believe that the Commissioner erroneously relied
too heavily on indications in the medical record that Hutsell
22
See also Hutsell v. Massanari, 259 F.3d 707, 711 (8th Cir. 2001)
(“With regard to mental disorders, the Commissioner’s decision must take
into account evidence indicating that the claimant’s true functional ability
may be substantially less than the claimant asserts or wishes. Given the
unpredictable course of mental illness, [s]ymptom-free intervals and brief
remissions are generally of uncertain duration and marked by the
impending possibility of relapse. Moreover, [i]ndividuals with chronic
psychotic disorders commonly have their lives structured in such a way as
to minimize stress and reduce their signs and symptoms. Such individuals
may be much more impaired for work than their signs and symptoms
would indicate.” (quotation marks and citations omitted) (alterations in
the original)).
44 GARRISON V. COLVIN
was ‘doing well,’ because doing well for the purposes of a
treatment program has no necessary relation to a claimant’s
ability to work or to her work-related functional capacity.”).23
Caution in making such an inference is especially appropriate
when no doctor or other medical expert has opined, on the
basis of a full review of all relevant records, that a mental
health patient is capable of working or is prepared to return
to work. Cf. Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir.
1989) (“The ALJ’s conclusion that Rodriguez was responding
to treatment also does not provide a clear and convincing
reason for disregarding Dr. Pettinger’s opinion. No physician
opined that any improvement would allow Rodriguez to
return to work.”).
These rules clarify the nature of the ALJ’s error. Rather
than describe Garrison’s symptoms, course of treatment, and
bouts of remission, and thereby chart a course of
improvement, the ALJ improperly singled out a few periods
of temporary well-being from a sustained period of
impairment and relied on those instances to discredit
Garrison. While ALJs obviously must rely on examples to
show why they do not believe that a claimant is credible, the
data points they choose must in fact constitute examples of a
23
See also Scott v. Astrue, 647 F.3d 734, 739–40 (7th Cir. 2011) (“There
can be a great distance between a patient who responds to treatment and
one who is able to enter the workforce, and that difference is borne out in
Dr. Tate’s treatment notes. Those notes show that although Scott had
improved with treatment, she nevertheless continued to frequently
experience bouts of crying and feelings of paranoia. The ALJ was not
permitted to “cherry-pick” from those mixed results to support a denial of
benefits . . . . The very nature of bipolar disorder is that people with the
disease experience fluctuations in their symptoms, so any single notation
that a patient is feeling better or has had a ‘good day’ does not imply that
the condition has been treated.” (citations omitted))
GARRISON V. COLVIN 45
broader development to satisfy the applicable “clear and
convincing” standard. Here, the record reveals a tortuous
path: some symptoms came and went (e.g., paranoia,
hallucinations, pseudo-seizures), some symptoms persisted
nearly the whole period (e.g., insomnia, bouts of depression
and mania), and still other symptoms appear to have remained
a constant source of impairment (e.g., intense anxiety).
Garrison’s diagnoses of PTSD and bipolar remained constant
across all treatment records, and her GAF score consistently
hovered around 50 to 55. She remained in this condition even
while going to great lengths to minimize stressors in her
life—to the point that she could not go to the grocery store
alone—and, when she did try to work for a brief period, was
fired because of her mental impairments. The ALJ erred in
concluding that a few short-lived periods of temporary
improvement in Garrison’s mental health symptoms
undermined Garrison’s testimony.24
24
The ALJ also erred in concluding that Garrison must be discredited on
the ground that some—though not all—of her bouts of remission appear
to have resulted from Garrison going off some of her medications. As we
have remarked, “it is a questionable practice to chastise one with a mental
impairment for the exercise of poor judgment in seeking rehabilitation.”
Nguyen, 100 F.3d at 1465 (quotation marks and citations omitted). In
other words, we do not punish the mentally ill for occasionally going off
their medication when the record affords compelling reason to view such
departures from prescribed treatment as part of claimants’ underlying
mental afflictions. See, e.g., Martinez v. Astrue, 630 F.3d 693, 697 (7th
Cir. 2011); Spiva v. Astrue, 628 F.3d 346, 351 (7th Cir. 2010); Pate-Fires
v. Astrue, 564 F.3d 935, 945 (8th Cir. 2009). Here, the record shows that
Garrison’s occasional decisions to go “off her meds” were at least in part
a result of her underlying bipolar disorder and her other psychiatric issues.
46 GARRISON V. COLVIN
c. Conclusion
The ALJ did not offer specific, clear, and convincing
reasons for rejecting Garrison’s testimony concerning her
physical and mental impairments. In fact, the reasons given
by the ALJ not only fail this demanding standard, but also
would fail a far more forgiving inquiry, as they are plainly
belied by the record and rest upon mischaracterizations of
Garrison’s testimony.
III
Reviewing for abuse of discretion, see Harman, 211 F.3d
at 1173, we reverse the district court’s decision to remand this
case to the ALJ for further proceedings, and instead remand
to the district court with instructions to remand to the ALJ for
a calculation and award of appropriate benefits.
A. Applicable Law
Usually, “[i]f additional proceedings can remedy defects
in the original administrative proceeding, a social security
case should be remanded.” Lewin v. Schweiker, 654 F.2d
631, 635 (9th Cir. 1981). The Social Security Act, however,
makes clear that courts are empowered to affirm, modify, or
reverse a decision by the Commissioner “with or without
remanding the cause for a rehearing.” 42 U.S.C. § 405(g)
(emphasis added). Accordingly, every Court of Appeals has
recognized that in appropriate circumstances courts are free
to reverse and remand a determination by the Commissioner
with instructions to calculate and award benefits. See, e.g.,
Gentry v. Comm’r of Soc. Sec., 741 F.3d 708, 730 (6th Cir.
2014); Jones v. Astrue, 650 F.3d 772 (D.C. Cir. 2011); Punzio
v. Astrue, 630 F.3d 704, 713 (7th Cir. 2011); Salazar v.
GARRISON V. COLVIN 47
Barnhart, 468 F.3d 615, 626 (10th Cir. 2006); Hines v.
Barnhart, 453 F.3d 559, 567 (4th Cir. 2006); Seavey v.
Barnhart, 276 F.3d 1 (1st Cir. 2001); Williams v. Apfel,
204 F.3d 48 (2d Cir. 2000); McQueen v. Apfel, 168 F.3d 152,
156 (5th Cir. 1999); Davis v. Shalala, 985 F.2d 528, 534
(11th Cir. 1993); Podedworny v. Harris, 745 F.2d 210,
221–22 (3d Cir. 1984); Parsons v. Heckler, 739 F.2d 1334,
1341 (8th Cir. 1984). Courts have generally exercised this
power when it is clear from the record that a claimant is
entitled to benefits, observing on occasion that inequitable
conduct on the part of the Commissioner can strengthen,
though not control, the case for such a remand.
This Circuit clarified the scope of judicial power to
remand for an award of benefits in Varney v. Sec’y of Health
& Human Servs., 859 F.2d 1396 (9th Cir. 1988) (“Varney
II”). There, we held that “where there are no outstanding
issues that must be resolved before a proper disability
determination 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 excess pain testimony were
credited, we will not remand solely to allow the ALJ to make
specific findings regarding that testimony. Rather, we will
. . . take that testimony to be established as true.” Id. at 1401.
We explained that this credit-as-true rule is designed to
achieve fairness and efficiency:
We believe [that this] rule promotes the
objectives we have identified in prior
disability cases. Requiring the ALJs to
specify any factors discrediting a claimant at
the first opportunity helps to improve the
performance of the ALJs by discouraging
them from reaching a conclusion first, and
48 GARRISON V. COLVIN
then attempting to justify it by ignoring
competent evidence in the record that suggests
an opposite result. It helps to ensure that pain
testimony will be carefully assessed and its
importance recognized. Moreover, it avoids
unnecessary duplication in the administrative
hearings and reduces the administrative
burden caused by requiring multiple
proceedings in the same case. Perhaps most
important, by ensuring that credible
claimants’ testimony is accepted the first time
around, the rule reduces the delay and
uncertainty often found in this area of the law,
and ensures that deserving claimants will
receive benefits as soon as possible. As
already noted, applicants for disability
benefits often suffer from painful and
debilitating conditions, as well as severe
economic hardship. Delaying the payment of
benefits by requiring multiple administrative
proceedings that are duplicative and
unnecessary only serves to cause the applicant
further damage—financial, medical, and
emotional. Such damage can never be
remedied. Without endangering the integrity
of the disability determination process, a
principal goal of that process must be the
speedy resolution of disability applicants’
claims. At the same time, the rule does not
unduly burden the ALJs, nor should it result
in the wrongful award of benefits . . . [I]f
grounds for [concluding that a claimant is not
disabled] exist, it is both reasonable and
GARRISON V. COLVIN 49
desirable to require the ALJ to articulate them
in the original decision.
Id. at 1398–99 (quotation marks, citations, and alterations
omitted). In light of these concerns, we noted, “[w]here
remand would unnecessarily delay the receipt of benefits,
judgment for the claimant is appropriate.” Id. at 1399. One
year later, in Hammock v. Bowen, we held that the credit-as-
true rule applies to medical opinion evidence, not only
claimant testimony. See 879 F.2d 498 (9th Cir. 1989).
Since Varney II, we have applied the credit-as-true rule in
nearly two dozen published opinions.25 In those cases, we
have developed a workable and stable framework for
applying the credit-as-true rule. Specifically, we have
devised a three-part credit-as-true standard, each part of
which must be satisfied in order for a court to remand to an
ALJ with instructions to calculate and award benefits: (1) the
record has been fully developed and further administrative
proceedings would serve no useful purpose; (2) the ALJ has
failed to provide legally sufficient reasons for rejecting
evidence, whether claimant testimony or medical opinion;
and (3) if the improperly discredited evidence were credited
as true, the ALJ would be required to find the claimant
disabled on remand.26 See Ryan, 528 F.3d at 1202;
25
The Commissioner contends that the credit-as-true rule is invalid. As
he concedes, this argument is foreclosed by precedent. On at least one
occasion, in fact, we have specifically considered and rejected some of the
arguments advanced anew in the Commissioner’s brief. See Moisa v.
Barnhart, 367 F.3d 882, 886–87 (9th Cir. 2004).
26
This third requirement naturally incorporates what we have sometimes
described as a distinct requirement of the credit-as-true rule, namely that
50 GARRISON V. COLVIN
Lingenfelter, 504 F.3d at 104l; Orn, 495 F.3d at 640; Benecke
v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004); Smolen, 80
F.3d at 1292.
We have, in a number of cases, stated or implied that it
would be an abuse of discretion for a district court not to
remand for an award of benefits when all of these conditions
are met. See, e.g., Lingenfelter, 504 F.3d at 1041; Orn,
495 F.3d at 649; McCartey v. Massanari, 298 F.3d 1072,
1076–77 (9th Cir. 2002); Harman, 211 F.3d at 1178; Smolen,
F.3d at 1292; Lester, 81 F.3d at 834; Ramirez v. Shalala,
8 F.3d 1449, 1455 (9th Cir. 1993); Swenson v. Sullivan,
876 F.2d 683, 689 (9th Cir. 1989). In the 2003 case of
Connett v. Barnhart, 340 F.3d 871 (9th Cir. 2003), however,
we cautioned that the credit-as-true rule may not be
dispositive of the remand question in all cases. Rather,
recognizing that this rule, like most, admits of exceptions
meant to preserve the rule’s purpose, we noted that the credit-
as-true doctrine envisions “some flexibility.” Id. at 876.
Connett then concluded that under the circumstances there
present a remand for an award of benefits was not mandatory
and remanded for further proceedings. Connett, however, did
not address when such flexibility is appropriately
exercised—in other words, it did not explain when remand
for further proceedings rather than for an award of benefits
would be appropriate even though the credit-as-true rule’s
conditions are met. We have applied the credit-as-true rule
in a number of cases since Connett, but have not in a
published opinion exercised the “flexibility” noted in that
decision, nor have we clarified the nature of the “flexibility”
that we there described. See, e.g., Lingenfelter, 504 F.3d at
there are no outstanding issues that must be resolved before a
determination of disability can be made. See Smolen, 80 F.3d at 1292.
GARRISON V. COLVIN 51
1041; Orn, 495 F.3d at 649; Benecke, 379 F.3d at 595; Moisa,
367 F.3d at 887. We do so now.
Recalling that, in social security cases, “the required
analysis centers on what the record evidence shows about the
existence or non-existence of a disability,” Strauss v. Comm’r
of the Soc. Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011),
Connett’s “flexibility” is properly understood as requiring
courts to remand for further proceedings when, even though
all conditions of the credit-as-true rule are satisfied, an
evaluation of the record as a whole creates serious doubt that
a claimant is, in fact, disabled. That interpretation best aligns
the credit-as-true rule, which preserves efficiency and
fairness in a process that can sometimes take years before
benefits are awarded to needy claimants, with the basic
requirement that a claimant be disabled in order to receive
benefits. Thus, when we conclude that a claimant is
otherwise entitled to an immediate award of benefits under
the credit-as-true analysis, Connett allows flexibility to
remand 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.
As we explain infra, here the district court abused its
discretion by remanding for further proceedings where the
credit-as-true rule is satisfied and the record afforded no
reason to believe that Garrison is not, in fact, disabled.27
27
The district court’s error is understandable in light of our prior failure
to make clear the relationship between Connick and the Varney II line of
cases. Indeed, several years ago a panel of this Court suggested in dicta
that our cases had drifted far enough apart to create an intra-circuit split.
Vasquez v. Astrue, 572 F.3d 586, 593 (9th Cir. 2009). Following our
careful study of the relevant cases, however, we are firmly convinced that
they may be fully and fairly reconciled in the manner described herein.
52 GARRISON V. COLVIN
B. Application of Law to Fact
Garrison unquestionably satisfies all three conditions of
the credit-as-true rule. First, there is no need to develop the
record or convene further administrative proceedings.28
Although the Commissioner argues that further proceedings
would serve the “useful purpose” of allowing the ALJ to
revisit the medical opinions and testimony that she rejected
for legally insufficient reasons, our precedent and the
objectives of the credit-as-true rule foreclose the argument
that a remand for the purpose of allowing the ALJ to have a
mulligan qualifies as a remand for a “useful purpose” under
the first part of credit-as-true analysis. See Benecke, 379 F.3d
at 595 (“Allowing the Commissioner to decide the issue again
would create an unfair ‘heads we win; tails, let’s play again’
system of disability benefits adjudication.”); Moisa, 367 F.3d
28
The Commissioner resists this conclusion, arguing that further
proceedings are required because the ALJ did not make an RFC
determination on the basis of Wang, Anderson, and General’s opinions.
Without such an RFC determination, the Commissioner asserts, it would
be impossible for us to determine whether Garrison is disabled. This
argument is without merit. In no prior credit-as-true case have we
suggested that an award of benefits is proper only if the ALJ made a
formal RFC finding—and for good reason, because ALJs rarely base their
RFC determinations on opinions or testimony that they have rejected (and
it will always be such opinions or testimony that are at issue in credit-as-
true cases). Instead, we have considered whether the VE answered a
question describing a hypothetical person with the RFC that the claimant
would possess were the relevant opinion or testimony taken as true. See,
e.g., Lingenfelter, 504 F.3d at 1041; Varney II, 859 F.2d at 1401. Here,
the ALJ and counsel posed questions to the VE that matched both
Garrison’s testimony and the opinions of Wang, Anderson, and General,
and in response the VE answered that a person with such an RFC would
be unable to work. On that basis, we can conclude that Garrison is
disabled without remanding for further proceedings to determine anew her
RFC.
GARRISON V. COLVIN 53
at 887 (“The Commissioner, having lost this appeal, should
not have another opportunity to show that Moisa is not
credible any more than Moisa, had he lost, should have an
opportunity for remand and further proceedings to establish
his credibility.” (citation omitted)).
Second, as we have already explained at length, the ALJ
failed to provide a legally sufficient reason to reject
Garrison’s testimony and the opinions of her treating and
examining medical caretakers. We need not repeat this
analysis here.
Third, if the improperly discredited evidence were
credited as true, it is clear that the ALJ would be required to
find Garrison disabled on remand.29 Our conclusion follows
directly from our analysis of the ALJ’s errors and the strength
of the improperly discredited evidence, which we credit as
true: a treating doctor, a treating nurse practitioner, and an
examining psychologist all deemed Garrison to be disabled,
Garrison testified to an array of severe physical and mental
impairments, and a VE explicitly testified that a person with
the impairments described by Garrison or her medical
caretakers could not work. Accordingly, Garrison satisfies
the requirements of the credit-as-true standard.
Having concluded that Garrison satisfies all three parts of
credit-as-true analysis, we now turn to the question whether
29
At this stage of the credit-as-true analysis, we do not consider
arguments against crediting evidence that the ALJ did not make. In other
words, as we explained in Harman, we do not consider “whether the ALJ
might have articulated a justification for rejecting [a medical] opinion.”
211 F.3d at 1179 (emphasis added). This aspect of the credit-as-true rule
is grounded in the principles set forth in SEC v. Chenery Corp., 318 U.S.
80, 87–88 (1943).
54 GARRISON V. COLVIN
we should nonetheless exercise “flexibility” under Connett
and remand for further proceedings. Here, the answer is
clearly no. The Commissioner simply repeats all of the
arguments she has already made, asserting that the evidence
provided by the doctors and nurse practitioner who treated
Garrison should not be given much weight and that
Garrison’s testimony should not be accepted. As before, she
dwells on the bare handful of records showing slight
improvement in Garrison’s condition. At no point does she
advance any argument against this evidence that we have not
already carefully considered and rejected. Nor does she point
to anything in the record that the ALJ overlooked and explain
how that evidence casts into serious doubt Garrison’s claim
to be disabled.30 We have independently reviewed the entire
record and also have found nothing that would create doubt
as to Garrison’s entitlement to the benefits she seeks.31 The
record reflects that, since April 2007, Garrison has been
afflicted with a number of severe impairments, including
burning back pain that radiates into her legs, sharp neck pain
that radiates into her shoulders and arms, intense anxiety and
panic attacks, bipolar disorder, PTSD, and bouts of
hallucinations, paranoia, and social phobia. Even if some of
30
For example, in urging us to remand for further proceedings, the
Commissioner argues that the opinions of Wang, Anderson, and General
should be given little weight because some of them are expressed in
check-box form. The Commissioner also argues that some periods of
improvement by Garrison while she was being treated call into question
whether she was disabled. These arguments fail for the same reasons we
have already explained in addressing the ALJ’s analysis, most notably that
they are utterly belied by the record, inconsistent with our precedent, and
contradicted by the opinions of every treating and examining physician.
31
Although we do so here, we do not mean to suggest that, in every
credit-as-true case, courts must undertake an independent review of the
entire record.
GARRISON V. COLVIN 55
these symptoms have occasionally abated for brief periods of
time—all while Garrison is in ongoing treatment and has
significantly minimized environmental stressors—we, like
her numerous medical caretakers, see no reason to doubt that
she has been entirely incapable of work since April 2007.32
Thus, considering the Commissioner’s arguments and
independently reviewing the record, we see no basis for
serious doubt that Garrison is disabled.
In sum, we conclude that Garrison satisfies all three
conditions of the credit-as-true rule and that a careful review
of the record discloses no reason to seriously doubt that she
is, in fact, disabled. A remand for a calculation and award of
benefits is therefore required under our credit-as-true
precedents.
CONCLUSION
We conclude that the ALJ erred in assigning little weight
to Wang and Anderson’s opinions, erred in her
characterization of General’s opinion, and failed to offer
specific, clear, and convincing reasons for discrediting part of
Garrison’s testimony. We further conclude that the district
court abused its discretion in remanding for further
proceedings. We reverse the judgment of the district court
with instructions to remand to the ALJ for the calculation and
award of benefits.
REVERSED AND REMANDED
32
This conclusion was confirmed by careful questioning of the VE
regarding hypothetical persons at the hearing before the ALJ.