Brenda Diedrich v. Nancy Berryhill

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRENDA M. DIEDRICH, No. 14-36070
Plaintiff-Appellant,
D.C. No.
v. 6:13-cv-01501-
CL
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, Senior District Judge, Presiding
Argued and Submitted June 5, 2017
Portland, Oregon
Filed October 26, 2017
Before: A. Wallace Tashima, Ronald M. Gould,
and Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Gould;
Dissent by Judge Rawlinson
2 DIEDRICH V. BERRYHILL
SUMMARY *
Social Security
The panel affirmed in part, and reversed in part, the
district court’s order affirming the Commissioner of Social
Security’s denial of claimant’s application for Social
Security Disability Insurance (“SSDI”) benefits under Title
II of the Social Security Act.
Unlike Supplemental Security Income benefits under
Title XVI of the Social Security Act, SSDI benefits are
limited to a certain period of insurance determined by the
amount of claimant’s previously taxed earnings. The
Commissioner determined that claimant had become
disabled but an administrative law judge (“ALJ”) found that
her disability did not begin during the period in which she
was insured for SSDI benefits.
The panel held that the ALJ erred by not calling a
medical advisor at the hearing, by giving too little weight to
the observations of claimant’s fiancé, and by finding that
claimant was only partially credible. Specifically, the panel
held that pursuant to Social Security Ruling 83-20, the
Commissioner erred by not calling a medical advisor at the
hearing to help determine the precise onset date of
claimant’s disability under the circumstances – namely,
there were large gaps in the medical records documenting a
slowly progressive impairment, and an ALJ’s assessment of
the disability onset date would be mere speculation without
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
DIEDRICH V. BERRYHILL 3
the aid of a medical expert. Concerning the ALJ’s finding
that claimant’s fiancé’s observations merited “little weight,”
the panel held that none of the ALJ’s three reasons for
discounting the observations were germane. Concerning the
ALJ’s finding that claimant was only a “partially credible
witness,” the panel held none of the ALJ’s given reasons –
that reports by an orthopedist and therapist did not mention
mental health symptoms, that there were no observations of
claimant’s different personalities, and that claimant’s daily
activities involved a wide range of activities – was clear and
convincing.
The panel concluded that none of the ALJ’s errors were
harmless. The panel remanded for further proceedings with
instructions that the ALJ’s decision be vacated, and that the
district court remand to the ALJ with instructions that the
ALJ should call a medical advisor and proceed in a manner
consistent with this opinion.
Judge Rawlinson dissented because, applying the
deferential substantial evidence standard of review, she
agreed with the magistrate judge and the district court that
the ALJ’s decision was free of legal error and supported by
substantial evidence.
4 DIEDRICH V. BERRYHILL
COUNSEL
Max Rae (argued), Salem, Oregon, for Plaintiff-Appellant.
David Burdett (argued) and John C. Lamont, Special
Assistant United States Attorneys; Adrian Lee Brown,
Assistant United States Attorney; David Morado, Regional
Chief Counsel, Region X; Office of the General Counsel,
Social Security Administration, Seattle, Washington; for
Defendant-Appellee.
OPINION
GOULD, Circuit Judge:
Brenda M. Diedrich appeals the district court’s order
affirming the Commissioner of Social Security’s (the
“Commissioner”) denial of Diedrich’s application for Social
Security Disability Insurance (“SSDI”) benefits under Title
II of the Social Security Act. The Commissioner determined
that Diedrich had become disabled, but an Administrative
Law Judge (“ALJ”) found that her disability did not begin
during the period in which she was insured for SSDI
benefits. We hold that the ALJ erred in its assessment (1) by
not calling a medical advisor at the hearing; (2) by giving too
little weight to the observations of Diedrich’s fiancé; and
(3) by finding that Diedrich was only partially credible. We
reverse in part on these grounds, and remand. In a separately
filed memorandum disposition, we reject several other
challenges Diedrich raises related to the ALJ’s decision,
affirming in part the ALJ’s decision.
DIEDRICH V. BERRYHILL 5
I
We consider a claimant with a troubled past and serious
medical conditions. Brenda Diedrich had a rough childhood:
Her upbringing was marred by drug addiction, sexual and
emotional abuse from her father, suicide attempts, and a
marriage at seventeen that resulted in domestic violence.
Since 2002, Diedrich has been arrested at least six times, and
has been jailed twice. This background doubtless plays
some role in her medical conditions.
Diedrich has applied for disability benefits several times.
At issue in this appeal is her third application, filed on
August 26, 2009, seeking both SSDI benefits under Title II
of the Social Security Act and Supplemental Security
Income (“SSI”) benefits under Title XVI of the act. See
42 U.S.C. §§ 401 et seq. (Title II), 1381 et seq. (Title XVI).
SSI benefits are based on needs. To be eligible, a
claimant must be “aged, blind or disabled,” and must have
income and resources under certain thresholds. See id.§ 1382(a). In contrast, SSDI benefits are based on earnings.
The claimant must be disabled, and must have contributed to
a federal insurance trust fund through deductions in his or
her wages. See id. § 401(b); see generally Bowen v.
Galbreath, 485 U.S. 74, 75 (1988). Unlike SSI benefits,
SSDI benefits are limited to a certain period of insurance.
The length of this insured period is determined by the
amount of the claimant’s previously taxed earnings. See
42 U.S.C. § 423(c)(1). The definition of “disability” for SSI
benefits is the same as for SSDI benefits. Compare
42 U.S.C. § 423(d)(1)(A) (Title II), with id.§ 1382c(a)(3)(A) (Title XVI).
On January 29, 2010, a Disability Determination
Services (“DDS”) psychological consultant concluded that
6 DIEDRICH V. BERRYHILL
as of the date of Diedrich’s third application, August 26,
2009, Diedrich was disabled due to bipolar and anxiety
disorders. This entitled Diedrich to SSI benefits. But
Diedrich had not been insured for SSDI benefits since June
30, 2008. Because the psychological consultant concluded
that Diedrich’s disability began after June 30, 2008,
Diedrich’s application for SSDI benefits was denied.
Diedrich sought administrative review of this denial of
SSDI benefits. She argued that the psychological consultant
determined the wrong onset date of her disability.
Specifically, she claimed that her disability began not on
August 26, 2009, but much earlier, on October 1, 2002.
Diedrich asserted that because her disability began before
her Title II insurance expired on June 30, 2008, she was
entitled to SSDI benefits.
On December 14, 2011, an ALJ held a hearing on
Diedrich’s benefits denial. The relevant evidence at the
hearing included medical records from several of Diedrich’s
treating physicians. These records showed that, in addition
to certain physical conditions, as early as July 2003 Diedrich
suffered serious mental health symptoms. These symptoms
included periods of extreme hyperactivity and recklessness,
volatile moods, weeks-long bouts of depression,
hallucinations, memory problems, trouble concentrating,
panic attacks, social anxiety, and blackouts during which
Diedrich would experience personality changes. At various
points, Diedrich’s doctors have diagnosed her with bipolar
disorder, depression, attention deficit disorder, post-
traumatic stress disorder, agoraphobia, and split
personalities, among other conditions.
Diedrich testified at the hearing. She described how her
mental health symptoms hampered her functioning in daily
life. Diedrich’s fiancé, David Niebaum, also testified. He
DIEDRICH V. BERRYHILL 7
explained that he had known Diedrich since the end of
September 2008 and saw her every day. He described how
Diedrich would experience manic-depressive cycles and
take on alternate personalities. Niebaum also submitted a
third-party function report, in which he explained how
Diedrich’s inability to maintain a routine, mood swings, poor
memory, trouble concentrating, anxiety, and other
symptoms left her dependent on him for daily help. A
vocational expert testified at the hearing as well, but the ALJ
did not call a medical advisor.
The ALJ denied SSDI benefits for Diedrich. The ALJ
gave “little weight” to Niebaum’s observations, and found
that Diedrich was merely a “partially credible witness.” The
ALJ concluded that Diedrich was “not under a disability . . .
at any time from October 1, 2002, the alleged onset date,
through June 30, 2008, the date last insured.” Diedrich filed
this action in the district court, seeking review of the
Commissioner’s final decision that denied Diedrich SSDI
benefits. A magistrate judge recommended that the
Commissioner’s decision be affirmed. The district court
adopted the Findings and Recommendations of the
magistrate judge, affirmed the Commissioner’s decision,
and dismissed the case. Diedrich timely appealed.
II
We have jurisdiction to decide this appeal under
28 U.S.C. § 1291. We review de novo the district court’s
decision affirming the Commissioner’s denial of benefits.
Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th
Cir. 2006). We may set aside the Commissioner’s benefits
denial if the ALJ committed legal error or reached a decision
not supported by substantial evidence. Id.8 DIEDRICH V. BERRYHILL
III
A
Diedrich contends that the ALJ committed legal error by
not calling a medical advisor at the hearing. She argues that
a medical advisor was necessary to help the ALJ sift through
her voluminous medical records and determine the correct
onset date of her disability.
The ALJ is responsible for studying the record and
resolving any conflicts or ambiguities in it. Treichler v.
Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir.
2014). But in circumstances where the ALJ must determine
the date of disability onset and medical evidence from the
relevant time period is unavailable or inadequate, Social
Security Ruling (“SSR”) 83-20 states that the ALJ should
call a medical advisor. “Social Security Rulings [] do not
carry the ‘force of law,’ but they are binding on ALJs
nonetheless. They reflect the official interpretation of the
[Social Security Administration] and are entitled to some
deference as long as they are consistent with the Social
Security Act and regulations.” Molina v. Astrue, 674 F.3d
1104, 1113 n.5 (9th Cir. 2012) (internal quotation marks and
citation omitted).
In relevant part, SSR 83-20 states:
With slowly progressive impairments, it is
sometimes impossible to obtain medical
evidence establishing the precise date an
impairment became disabling. Determining
the proper onset date is particularly difficult,
when, for example, the alleged onset and the
date last worked are far in the past and
adequate medical records are not available.
DIEDRICH V. BERRYHILL 9
In such cases, it will be necessary to infer the
onset date . . . .
....
At the hearing, the [ALJ] should call on the
services of a medical advisor when onset
must be inferred.
Relying on SSR 83-20, we have held that where a record is
lacking and ambiguous as to the onset date of disability, “the
ALJ must call a medical expert to assist in determining the
onset date.” Armstrong v. Comm’r of Soc. Sec. Admin.,
160 F.3d 587, 590 (9th Cir. 1998); see also DeLorme v.
Sullivan, 924 F.2d 841, 848 (9th Cir. 1991) (“In the event
that the medical evidence is not definite concerning the onset
date and medical inferences need to be made, SSR 83-20
requires the administrative law judge to call upon the
services of a medical advisor and to obtain all evidence
which is available to make the determination.”); Morgan v.
Sullivan, 945 F.2d 1079, 1083 (9th Cir.1991) (per curiam)
(reversing in part an ALJ’s determination of the onset date
of mental disorders because the ALJ did not receive the
assistance of a medical advisor).
This requirement makes sense. Sometimes, the onset of
disabilities occurs all at once, and the date of onset is clear.
For example, when a claimant is permanently injured in a car
wreck, there is rarely a dispute over the date of the crash.
But sometimes conditions build slowly over time. In such
cases, it helps to have medical expertise to determine when
the symptoms became severe enough so that the claimant
became disabled under Title II. See Morgan, 945 F.2d at
1081.
10 DIEDRICH V. BERRYHILL
Here, the record shows that Diedrich did not see a
psychologist until years after her alleged onset date; there are
no mental health records for nearly two years surrounding
her date last insured, and the next available records
supported a finding of disability; and she suffered
inconsistent but increasingly severe symptoms over the
seven years between her alleged onset date and the disability
onset date found by the Commissioner. Because “the alleged
onset and the date last worked are far in the past and
adequate medical records are not available,” determining the
precise date on which Diedrich became disabled required an
informed inference. “Such an inference is not possible
without the assistance of a medical expert.” Id. at 1083.
The Commissioner relies on Sam v. Astrue to argue that
SSR 83-20 is inapplicable. 550 F.3d 808 (9th Cir. 2008) (per
curiam). In Sam, we held “that SSR 83-20 does not require
a medical expert where the ALJ explicitly finds that the
claimant has never been disabled.” 550 F.3d at 809. But the
ALJ here did not find that Diedrich was never disabled. In
fact, the ALJ could not have made such a finding because
Diedrich was already found disabled as of her SSI and SSDI
application date, August 26, 2009. Rather, the ALJ
concluded that Diedrich was “not under a disability . . . at
any time from October 1, 2002, the alleged onset date,
through June 30, 2008, the date last insured.” This differs
from the case in Sam, where the ALJ concluded that the
claimant “was not under a ‘disability’ . . . at any time
through the date of [the ALJ’s] decision.” Id. at 810 (internal
quotation marks omitted). We conclude that Sam does not
control here.
Finally, the district court held that the ALJ did not need
to call a medical advisor because psychological consultants
examined Diedrich’s medical records in reaching Diedrich’s
DIEDRICH V. BERRYHILL 11
initial denial of SSDI benefits. But SSR 83-20 states that the
ALJ should call a medical advisor “[a]t the hearing.” It does
not say that the ALJ should rely on the previous work of
DDS consultants. Moreover, if analysis from DDS
consultants was a sufficient substitute for the testimony of a
medical advisor, then SSR 83-20 would be superfluous.
Applications for benefits are ordinarily reviewed by a
consultant long before an ALJ gets involved. Relying on the
initial review of DDS consultants also presents the practical
problem that those consultants do not have before them the
same record as the ALJ. In particular, such consultants do
not have access to the later-in-time testimony given at the
hearing. The consultant here, for example, did not have
access to the hearing testimony of either Diedrich or of
Niebaum because that testimony had not yet been given.
We hold that the Commissioner erred by not calling a
medical advisor at the hearing to help determine the precise
onset date of Diedrich’s disability under these
circumstances—that is, where there are large gaps in the
medical records documenting a slowly progressive
impairment and an ALJ’s assessment of the disability onset
date would be mere speculation without the aid of a medical
expert. Even with a medical advisor, the date of onset of
disability in this challenging case might have remained
somewhat debatable and mysterious. But with testimony
from a medical advisor, at least the ALJ could exercise an
informed judgment based on medical science.
B
We next address Diedrich’s contention that the ALJ
erred by giving “little weight” to Niebaum’s observations.
“Lay testimony as to a claimant’s symptoms is competent
evidence that an ALJ must take into account, unless he or
she expressly determines to disregard such testimony and
12 DIEDRICH V. BERRYHILL
gives reasons germane to each witness for doing so.” Lewis
v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001). The ALJ listed
three reasons for giving Niebaum’s observations “little
weight”: (1) Niebaum had a close relationship with Diedrich,
which “likely influenced his opinion;” (2) the “overall
medical evidence” did not support Niebaum’s observations;
and (3) Niebaum’s observations did not begin until
September 2008, three month after Diedrich’s insurance for
SSDI benefits expired. We conclude that each of these
reasons is not germane as a reason to disregard Niebaum’s
observations.
First, Niebaum’s personal relationship with Diedrich is
not a valid reason to discount his observations. To do so
“contradicts our insistence that, regardless of whether they
are interested parties, friends and family members in a
position to observe a claimant’s symptoms and daily
activities are competent to testify as to his or her condition.”
Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 694
(9th Cir. 2009) (internal quotation marks omitted); see also
Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996) (“The
fact that a lay witness is a family member cannot be a ground
for rejecting his or her testimony. To the contrary, testimony
from lay witnesses who see the claimant every day is of
particular value; such lay witnesses will often be family
members.” (citation omitted)). Niebaum’s close relationship
with Diedrich is not a germane reason to discount the weight
of his observations.
Second, a lack of support from the “overall medical
evidence” is also not a proper basis for disregarding
Niebaum’s observations. See Bruce v. Astrue, 557 F.3d
1113, 1116 (9th Cir. 2009) (“Nor under our law could the
ALJ discredit [the witness’s] lay testimony as not supported
by medical evidence in the record.”). The fact that lay
DIEDRICH V. BERRYHILL 13
testimony and third-party function reports may offer a
different perspective than medical records alone is precisely
why such evidence is valuable at a hearing. See Smolen,
80 F.3d at 1289 (holding that ALJ erred where the ALJ
rejected the testimony of claimant’s family members about
claimant’s symptoms because the medical records did not
corroborate those symptoms). A lack of support from
medical records is not a germane reason to give “little
weight” to those observations.
Third, although Niebaum’s observations began three
months after Diedrich’s insured period ended, his
observations are still relevant to show Diedrich’s symptoms
during that period. Absent a reason to think Diedrich
experienced a major symptom change in the three months
before she met Niebaum, it is a fair and reasonable inference
that the symptoms Niebaum observed were substantially
similar to the symptoms Diedrich experienced before June
30, 2008. See Tobeler v. Colvin, 749 F.3d 830, 833 (9th Cir.
2014) (“[Lay witness’s] statement that [claimant] was
incapable of working in 2001 is relevant to his ability to
work in 1999, at least in the absence of any evidence that
[claimant’s] condition worsened between 1999 and 2001.”);
cf. Lester v. Chater, 81 F.3d 821, 832 (9th Cir. 1995)
(“[M]edical evaluations made after the expiration of a
claimant’s insured status are relevant to an evaluation of the
preexpiration condition.” (internal quotation marks
omitted)), as amended (Apr. 9, 1996). That Niebaum’s
observations began three months after Diedrich’s insured
period ended is not a germane reason to give those
observations “little weight.”
We conclude that none of the ALJ’s three reasons for
discounting Niebaum’s observations is germane. We hold
14 DIEDRICH V. BERRYHILL
that the ALJ erred by giving “little weight” to Niebaum’s
observations.
C
Finally, we address Diedrich’s contention that the ALJ
erred in finding that she was a “partially credible witness.”
In assessing the credibility of a claimant’s
testimony regarding subjective pain or the
intensity of symptoms, the ALJ engages in a
two-step analysis. First, the ALJ must
determine whether there is objective medical
evidence of an underlying impairment which
could reasonably be expected to produce the
pain or other symptoms alleged. If the
claimant has presented such evidence, and
there is no evidence of malingering, then the
ALJ must give specific, clear and convincing
reasons in order to reject the claimant’s
testimony about the severity of the
symptoms.
Molina, 674 F.3d at 1112 (internal quotation marks and
citations omitted). The ALJ gave four reasons for finding
Diedrich’s testimony about the severity of her symptoms
only “partially credible”: (1) Dr. Terri Robinson, an
orthopedist who treated Diedrich, did not mention any
mental health symptoms in her February 2008 report;
(2) Melissa Buttars, a therapist who treated Diedrich, did not
mention particular mental health symptoms in her May 2005
report; (3) in the ALJ’s view of the record, there were no
observations of Diedrich’s different personalities and there
was no report mentioning multiple personalities before
Diedrich’s date last insured; and (4) the ALJ viewed
Diedrich’s daily life as involving a wide range of activities.
DIEDRICH V. BERRYHILL 15
Based on our review of the record in this case, we conclude
that none of these reasons is “clear and convincing.” Id.Regarding Dr. Robinson’s report, the ALJ said that Dr.
Robinson “did not make any observations about the claimant
being anxious, flighty, depressed, or manic, which would
suggest that [] the claimant’s mental health symptoms were
not as severe as she testified to at the hearing.” But even if
Diedrich were suffering from such symptoms, we would not
necessarily expect Dr. Robinson to note them in her report.
Dr. Robinson was an orthopedist, not a mental health
professional. She might have thought it beyond her capacity
to inquire or comment about mental health symptoms. In
line with her specialty, Dr. Robinson reported the pain that
Diedrich said she was feeling in her back, shoulder, neck,
hand, and wrist. Still, under the heading “Chief
Complaints,” Dr. Robinson noted “Multiple psychiatric
history; bipolar disorder, ADHD, borderline personality
disorder, panic disorder, agoraphobia.” It is unsurprising
that Dr. Robinson did not also mention Diedrich’s specific
mental health symptoms. That she did not do so, in our view,
says little about the extent to which Diedrich may in fact
have been suffering from such symptoms.
Moreover, the same month that Diedrich saw Dr.
Robinson, she also saw a psychologist, Dr. Nick Dietlein.
Dr. Dietlein concluded that Diedrich presented “symptoms
consistent with a Major Depressive Disorder and PTSD. It
is very possible that she has Attention Deficit Disorder.” Dr.
Dietlein’s conclusions reinforce that the absence of mental
health symptoms from Dr. Robinson’s report does not tend
to prove, let alone prove persuasively, that Diedrich lacked
such symptoms. Dr. Robinson’s report does not provide a
clear and convincing reason for discounting Diedrich’s
testimony.
16 DIEDRICH V. BERRYHILL
Regarding therapist Buttars’s May 2005 assessment, the
ALJ noted that Buttars found “no indication of
hallucinations, delusions, obsessions, phobias, or perceptual
disturbances”; that Diedrich described her mood to Buttars
as “good”; and that Buttars found Diedrich’s social
judgment, intellectual functioning, and memory all normal.
However, the fact that Diedrich was not exhibiting certain
symptoms at the time of her appointment on a particular day
does not indicate that Diedrich was not experiencing those
symptoms generally or at other pertinent times. As the Ninth
Circuit has explained:
[Regarding] 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 over a period of
months or years and to treat them as a basis
for concluding a claimant is capable of
working . . . . 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 broader development to satisfy
the applicable “clear and convincing”
standard.
Garrison, 759 F.3d at 1017–18. Here, the absence of certain
symptoms from Buttars’s report is insufficient to show a
“broader development” that Diedrich did not experience
those symptoms. Id. at 1018. Indeed, Buttars’s report noted
that Diedrich’s mental health disorders were in partial
DIEDRICH V. BERRYHILL 17
remission. It was improper for the ALJ to discount
Diedrich’s testimony by “cherry pick[ing]” the absence of
certain symptoms from this report. Attmore v. Colvin,
827 F.3d 872, 877 (9th Cir. 2016) (quoting Scott v. Astrue,
647 F.3d 734, 740 (7th Cir. 2011)). Buttars’s report does not
provide a clear and convincing reason to find Diedrich’s
claims regarding the extent of her symptoms unreliable.
Next, we address the ALJ’s comments that nobody
observed Diedrich’s different personalities and that no report
mentioned multiple personalities before Diedrich’s last date
insured. We disagree with the ALJ that the record supports
this characterization. At the hearing, Niebaum testified in
detail about his observations of Diedrich’s split personality
symptoms. He also mentioned those symptoms in his third-
party function report. And, though Niebaum’s observations
began three months after Diedrich’s date last insured, they
still to a degree support the notion that Diedrich’s split
personality symptoms during the insured period were as she
described them. See Tobeler, 749 F.3d at 833. In addition,
a counseling progress report from May 2007 mentioned that
Diedrich had a history of “blackouts” that were triggered by
arguments or events that “evoked intense feelings.” It also
noted that a previous therapist had diagnosed Diedrich with
split personality disorder. The ALJ’s characterization of the
record does not survive scrutiny. We conclude that the
ALJ’s assertions related to Diedrich’s split personality
disorder are not clear and convincing reasons to find
Diedrich only partially credible.
Finally, we address the ALJ’s argument that Diedrich’s
“activities of daily living are wide.” The ALJ took note of
certain daily activities that Diedrich could perform, such as
bathing, cooking, taking care of her cat, chores around the
house, shopping, paying bills, and using a checkbook. But
18 DIEDRICH V. BERRYHILL
the ALJ ignored other evidence showing the difficulties
Diedrich faced in everyday life. See Gallant v. Heckler,
753 F.2d 1450, 1456 (9th Cir. 1984) (ALJ may not justify a
credibility finding “by ignoring competent evidence in the
record that suggests an opposite result”). This evidence
included going three to five days without sleeping; weeks-
long bouts of depression; overspending and
promiscuousness during manic periods; hallucinations;
difficulty paying attention; inability to follow through on
activities; difficulty remembering things; severe panic
attacks; anxiety about, and aversion to, social situations;
blackouts and alternate personalities; needing reminders to
take medicine; forgetting appointments; getting sidetracked
when outside the house; frustration and confusion when
reading; trouble following and remembering instructions;
trouble with changes to routine; trouble handling stress; and
“extreme difficulty” staying focused on a task. That
Diedrich could participate in some daily activities does not
contradict the evidence of otherwise severe problems that
she encountered in her daily life during the relevant period.
The sorts of daily activities Diedrich could perform are
also not readily “transferrable to a work environment.”
Ghanim v. Colvin, 763 F.3d 1154, 1165 (9th Cir. 2014)
(internal quotation marks omitted); see also Smolen, 80 F.3d
at 1284 n.7 (“The Social Security 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 . . . .”). House chores, cooking simple
meals, self-grooming, paying bills, writing checks, and
caring for a cat in one’s own home, as well as occasional
shopping outside the home, are not similar to typical work
responsibilities. See, e.g., Gallant, 753 F.2d at 1453(ordering award of benefits for leg and back pain despite
claimant’s daily activities of cooking meals and washing
DIEDRICH V. BERRYHILL 19
dishes). We note that even though Diedrich was performing
these tasks, she was likely not doing them with the
consistency and persistence that a work environment
requires. See 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.”). Diedrich’s symptoms also included
anxiety related to social interactions, making a task easy to
perform inside the home potentially very difficult to perform
outside the home. Diedrich’s ability to perform certain daily
activities is not a clear and convincing reason to find her less
than fully credible.
We conclude that none of the ALJ’s given reasons for
finding Diedrich only partially credible is clear and
convincing. We hold that the ALJ erred in its credibility
finding related to Diedrich.
IV
In summary, we hold that the ALJ erred (1) by not calling
a medical advisor to help determine the precise onset date of
Diedrich’s disability; (2) by giving “little weight” to
Niebaum’s observations; and (3) by finding Diedrich only
“partially credible.” We also conclude that none of these
errors is harmless. See Molina, 674 F.3d at 1115. On the
grounds listed, we reverse in part the district court’s
decision. In a separately filed memorandum disposition, we
otherwise affirm in part the district court’s decision. We
remand for further proceedings with instructions that the
ALJ’s decision be vacated, and that the district court shall
remand to the ALJ with instruction that it should call a
medical advisor and otherwise proceed in a manner
consistent with our opinion.
20 DIEDRICH V. BERRYHILL
The Commissioner shall bear all costs on appeal.
AFFIRMED in part, REVERSED in part, and
REMANDED.
RAWLINSON, Circuit Judge, dissenting:
I respectfully dissent from my colleagues’ conclusions
that the Administrative Law Judge (ALJ) “erred in its
assessment (1) by not calling a medical advisor at the
hearing; (2) by giving too little weight to the observations of
[Plaintiff-Appellant Brenda M.] Diedrich’s fiancé; and
(3) by finding that Diedrich was only partially credible.”
Majority Opinion, p. 4.
It is unquestioned and unquestionable that the claimant
suffered from significant physical and mental impairments.
The issue raised in the proceedings was whether those
impairments rendered the claimant disabled under the Social
Security Act. The ALJ ruled that they did not. Our task is
to examine whether the ALJ’s determination is supported by
substantial evidence, not whether we disagree with the
ALJ’s determination. See Attmore v. Colvin, 827 F.3d 872,
875 (9th Cir. 2016).
1. Failure To Call A Medical Advisor
The majority concludes that the ALJ committed legal
error by failing to call a medical advisor to assist in
determining the disability onset date. See Majority Opinion,
p. 11. The majority acknowledges that we have consistently
ruled that a medical advisor is required only if there is
ambiguity in the record and the onset date must be inferred.
See id., p. 9; see also Armstrong v. Comm’r, 160 F.3d 587,
DIEDRICH V. BERRYHILL 21
589 (9th Cir. 1998). However, the majority opinion points
to no real ambiguity in the record regarding the onset date of
the claimant’s disability. Indeed, the ALJ, without
objection, accepted the alleged onset date of October 1,
2002, when evaluating the evidence offered to support a
finding of disability. The majority seeks to manufacture an
ambiguity by selectively referring to portions of the record.
See Majority Opinion, p. 10. But the fact remains that the
parties did not dispute the onset date alleged by Diedrich and
accepted by the ALJ. There is absolutely no ambiguity in
this record regarding the asserted onset date.
More importantly, we have ruled that no medical advisor
is required if the ALJ determines that the claimant was never
disabled. See Sam v. Astrue, 550 F.3d 808, 809 (9th Cir.
2008). This ruling makes perfect sense because if there was
never a disability, the onset date no longer has relevance. In
concluding that this precedent does not apply, the majority
inexplicably ignores at least four explicit findings of non-
disability made by the ALJ.
On page 1 of her decision, the ALJ stated:
After careful consideration of all the
evidence, the undersigned concludes the
claimant was not under a disability within the
meaning of the Social Security Act. . .
On page 12 of the decision, the ALJ determined:
A finding of “not disabled” is therefore
appropriate under the framework of the
above cited rule.
...
22 DIEDRICH V. BERRYHILL
The claimant was not under a disability, as
defined in the Social Security Act, at any
time from October 1, 2002, the alleged
onset date, through June 30, 2008, the date
last insured . . .
In her conclusion on page 13 of the decision, the ALJ
reiterated:
Based on the application for a period of
disability and disability insurance benefits
. . ., the claimant was not disabled under
sections 216(i) and 223(d) of the Social
Security Act . . .
In view of the ALJ’s repeated findings of no disability,
it cannot credibly be gainsaid that the ALJ found the
claimant was not disabled. That finding placed this case
within our holding in Sam that no medical advisor was
required. No legal error occurred. See Sam, 550 F.3d at 810(“Because the ALJ found that Sam was not disabled at any
time through the date of the decision, the question of when
he became disabled did not arise and the procedures
prescribed in SSR 83-20 did not apply.”) (citation omitted)
(emphases in Sam). In Sam, we clarified that “SSR 83-20
addresses the situation in which an administrative law judge
makes a finding that an individual is disabled as of an
application date and the question arises as to whether the
disparity arose at an earlier time.” Id. (citation omitted).
We distinguished our earlier decisions in Armstrong and
Morgan v. Sullivan, 945 F.2d 1079 (9th Cir. 1991), as
applying when “there was either an explicit ALJ finding or
substantial evidence that the claimant was disabled at some
point after the date last insured, thus raising a question of
DIEDRICH V. BERRYHILL 23
onset date.” Sam, 550 F.3d at 811 (emphasis added). In
contrast, the ALJ in Sam, like the ALJ in the case before us,
“found that [the claimant was not disabled at any time.” Id.In light of that finding, “the ALJ was not required by SSR
83-20 to introduce a medical expert into the process.” Id.
2. Giving Too Little Weight To The Testimony Of
Claimant’s Fiancé
This issue may be resolved by reviewing the claimant’s
testimony because we have ruled that where the ALJ
provides germane reasons for giving less weight to
subjective testimony from one witness, similar testimony by
a different witness may also be given less weight. See
Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012)
(“[B]ecause the ALJ provided clear and convincing reasons
for rejecting the claimant’s own subjective complaints, and
because the lay witness’s testimony was similar to such
complaints, it follows that the ALJ also gave germane
reasons for rejecting the lay witness’s testimony.”) (quoting
Valentine v. Comm’r, 574 F.3d 685, 694 (9th Cir. 2009)
(internal quotation marks omitted)).
As discussed below, the ALJ gave “clear and
convincing” reasons for only partially crediting the
claimant’s testimony. Garrison v. Colvin, 759 F.3d 995,
1014–15 (9th Cir. 2014) (setting standard). As a result, the
testimony of claimant’s fiancé fares no better. See Molina,
674 F.3d at 1114.
3. Partially Crediting Claimant’s Testimony
The ALJ provided the following reasons for only
partially crediting the claimant’s testimony:
24 DIEDRICH V. BERRYHILL
(1) Although the claimant testified that she suffered
from “severe mania, depression, anxiety, and agoraphobia,”
the “orthopedic consultative examiner . . . did not make any
observations about the claimant being anxious, flighty,
depressed, or manic.” In addition, mental health treatment
notes support a conclusion that the claimant was capable of
functioning.” A mental health examination reflected “no
indication[s] of hallucinations, delusions, obsessions,
phobias, or perceptual disturbances.” Indeed, the claimant
herself “described her mood as ‘good’ and her social
judgment, intellectual functioning, and memory were all
normal.” Despite the claimant’s testimony regarding
multiple personalities and disassociative disorder,” there
were no reported observations of multiple personalities in
the record.
(2) The claimant engaged in a wide range of daily living
activities that were inconsistent with her asserted disability.
The claimant lived alone with her cat, dressed herself, bathed
herself, enjoyed cooking, fed her cat, cleaned the cat’s litter
box, cleaned her home, washed dishes, vacuumed and
cleaned her bathrooms. She sometimes walked and
sometimes traveled by car to various destinations. She
shopped for groceries and clothes, and was able to pay bills,
count change, and use a checkbook. She also managed a
savings account.
We have consistently held that similar findings
constituted substantial evidence to support a partial
credibility determination made by an ALJ. See, e.g., Lewis
v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001) (“One reason for
which an ALJ may discount lay testimony is that it conflicts
with medical evidence.”) (citation omitted); see also id. at
512 (“The absence of any mention of fatigue, along with the
‘no side effects’ observations in [claimant’s] medical
DIEDRICH V. BERRYHILL 25
reports, supported the ALJ’s rejection of . . . testimony that
[claimant] had suffered chronic fatigue . . .”).
The majority takes issue with the partial credibility
finding of the ALJ, specifically challenging the bona fides of
the reasons articulated by the ALJ to support her finding.
In addressing the ALJ’s reliance on the lack of any
reference to the claimant being “anxious, flighty, depressed
or manic,” in Dr. Robinson’s report, the majority observes
that Dr. Robinson was an orthopedist rather than a mental
health professional. Majority Opinion, p. 15. However, an
orthopedic physician is an acceptable medical source upon
whose observations the ALJ properly relied. See 20 C.F.R.
§ 416.902(a) (defining “acceptable medical source”). The
listing of complaints referenced by the majority, see
Majority Opinion, p. 15, merely represented claimant’s
summary of her condition rather than observations of the
physician. See Tommasetti v. Astrue, 533 F.3d 1035, 1041
(9th Cir. 2008) (permitting an ALJ to “reject a treating
physician’s opinion if it is based to a large extent on a
claimant’s self-reports . . .”) (citation and internal quotation
marks omitted).
The majority also refers to the claimant’s visit to a
psychologist, Dr. Dietlein. See Majority Opinion, p. 15.
Nevertheless, the bottom line of Dr. Dietlein’s opinion does
not support a claim of mental disability. In Dr. Dietlein’s
Summary of Findings, he concluded: “Today’s evaluation
revealed that Ms. Diedrich is able to understand and
remember instructions, is able to sustain her concentration
and attention and is able to persist. She was able to engage
in social interactions successfully. I believe she would be
able to adequately manage any funds that might be given to
her.”
26 DIEDRICH V. BERRYHILL
Addressing the lack of mental health symptoms observed
by therapist Buttar, the majority offers the following
equivocation:
[T]he fact that Diedrich was not exhibiting
certain symptoms at the time of her
appointment on a particular day does not
indicate that Diedrich was not experiencing
those symptoms generally or at other
pertinent times. . . .
Majority Opinion, p. 16.
The majority also isolates therapist Buttar’s observations
to argue the absence of a “broader development” of mental
health issues. Majority Opinion, p. 16 (quoting Garrison v.
Colvin, 759 F.3d 995, 1017–18 (9th Cir. 2014)). The flaw
in the majority’s argument is that Buttar’s observations were
buttressed by the similar observations of Drs. Robinson and
Dietlin, reflecting a “broader development” of the absence
of a disabling mental disability. Garrison, 759 F.3d at 1017.
More fundamentally, the majority’s reliance on Garrison
is singularly misplaced because the facts in Garrison are
almost the polar opposite of the facts in this record. In
Garrison, the “diagnoses of [post-traumatic stress disorder]
and bipolar disorder remained constant across all treatment
records.” Id. at 1017. In this case, in contrast, the absence
of any observed disabling mental impairment “remained
constant across all treatment records.” Id. (emphasis added).
At best, the majority’s view is an alternative
interpretation of the evidence presented at the hearing.
However, we have repeatedly held that if there are two
permissible views of the evidence, the view taken by the ALJ
must stand. See Burch v. Barnhart, 400 F.3d 676, 679
DIEDRICH V. BERRYHILL 27
(“Where evidence is susceptible to more than one rational
interpretation, it is the ALJ’s conclusion that must be
upheld. . . .” (citation omitted) (emphasis added); see also
Garrison, 759 F.3d at 1010 (“Where the evidence can
reasonably support either affirming or reversing a decision,
we may not substitute our judgment for that of the ALJ. . . .”)
(citation and alteration omitted); Holohan v. Massanari,
246 F.3d 1195, 1201 (9th Cir. 2001) (same).
The majority also takes issue with the ALJ’s discounting
of the “split personality” disorder evidence. See Majority
Opinion, p. 17. As an initial matter, the reference to a
previous diagnosis of split personality was based entirely on
the claimant’s own reporting, and may be discounted on that
basis. See Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194,
1206–07 (9th Cir. 2008) (holding that “an ALJ may discount
a medical opinion that relies on subjective statements rather
than clinical findings”). In addition, reliance on the
observations of claimant’s fiancé to support the diagnosis of
“split personality” is problematic for two reasons: 1) the
observations were made after the date last insured and 2) the
observations were not consistent with the medical evidence
of record. See Dale v. Colvin, 823 F.3d 941, 944 (9th Cir.
2016) (describing after-the-fact observations of the
claimant’s impairments as “marginally relevant,” especially
where the evidence differed from the opinion of the doctors);
see also Batson v. Comm’r, 359 F.3d 1190, 1196 (9th Cir.
2004) (approving ALJ discrediting of claimant’s testimony
that was inconsistent with the medical evidence); Bayliss v.
Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005) (approving
ALJ discrediting of family member testimony that was
inconsistent with the medical evidence); Vincent on behalf
of Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984)
(same). In sum, the ALJ’s discounting of the fiancé’s
testimony was supported by substantial evidence.
28 DIEDRICH V. BERRYHILL
We have regularly defined substantial evidence as “more
than a scintilla [but] less than a preponderance.” Holohan,
246 F.3d at 1201, quoting Tackett v. Apfel, 180 F.3d 1094,
1097 (9th Cir. 1999). We have emphasized that the
substantial evidence standard is “very deferential . . . even
more so than the ‘clearly erroneous’ standard.” Brault v.
Social Sec. Admin., 683 F.3d 443, 448 (9th Cir. 2012)
(citation omitted). We have clarified that “[t]he substantial
evidence standard means once an ALJ finds facts, we can
reject those facts only if a reasonable factfinder would have
to conclude otherwise.” Id. (citations and internal quotation
marks omitted) (emphasis in the original).
Unfortunately, the majority failed to adhere to this
standard throughout the majority opinion, but most
especially when reviewing the ALJ’s determination that the
claimant’s daily activities were inconsistent with the
asserted level of impairment.
The ALJ noted that the claimant lived alone with her cat,
cared for her cat, bathed and dressed herself, enjoyed
cooking, and cleaned her home. She shopped for groceries
and clothing, paid bills, counted change, used a checkbook,
and managed a savings account.
We have recognized and affirmed findings of an ALJ
that similar “daily activities [of a claimant] are inconsistent
with [her] allegations of disability.” Carmickle v. Comm’r,
533 F.3d 1155, 1163 (9th Cir. 2008).
More precisely, we have upheld similar credibility
findings in cases involving facts virtually identical to those
in this case. See Batson, 359 F.3d at 1196 (upholding a
partial credibility determination where the claimant
“tend[ed] his animals, walk[ed] outdoors, [went] out for
coffee, and visit[ed] with neighbors”); see also Morgan v.
DIEDRICH V. BERRYHILL 29
Comm’r, 169 F.3d 595, 600 (9th Cir. 1999) (affirming that
the ALJ “provided specific and substantial reasons that
undermine [claimant’s] credibility,” including the
claimant’s “ability to fix meals, do laundry, work in the yard,
and occasionally care for his friend’s child”).
In Burch, 400 F.3d at 680–81, the ALJ noted that the
claimant was “able to care for her own personal needs, cook,
clean and shop. She interact[ed] with her nephew and her
boyfriend. She [was] able to manage her own finances and
those of her nephew.” In upholding the ALJ’s partial
rejection of the claimant’s testimony, we emphasized:
Although the evidence of [the claimant’s]
daily activities may also admit of an
interpretation more favorable to [the
claimant], the ALJ’s interpretation was
rational, and we must uphold the ALJ’s
decision where the evidence is susceptible to
more than one rational interpretation.
Id. (alteration omitted).
After applying the deferential substantial evidence
standard of review, I agree with the magistrate judge and the
district court that the decision of the ALJ was free of legal
error and supported by substantial evidence. In my view, the
majority reaches a different result by reweighing the
evidence, something we are not permitted to do. See Brault,
683 F.3d at 447 (“[I]t is not our function to determine de
novo whether a [claimant] is disabled. . . .) (citation and
alteration omitted).
I respectfully dissent.