REINHARDT, Circuit Judge:
Karen Garrison appeals from a denial of Social Security benefits, arguing that the
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.
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, 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.
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
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.
In November 2007, Dr. Ernest Griffith, 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. Griffith 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
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.
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 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 relief from the again-chronic burning back pain, which soon started shooting down from
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'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.
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.
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.
Assessing Garrison's overall mental well-being, General made a number of diagnoses:
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 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 Ability, Anderson's records show that Garrison remained anxious and deeply paranoid, with a GAF score of 55-60.
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."
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 respite
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.
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.
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 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
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."
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:
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:
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."
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,
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 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.
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."
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.
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, 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 district court found that the ALJ failed to address "any of the particulars of [Wang's] lengthy
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 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.
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). "`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."
"[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).
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 convincing reasons for discrediting Garrison's symptom testimony.
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):
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.
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).
"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."
"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."
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, 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
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 merit
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 about
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 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.
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.
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 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
Garrison testified about her physical and mental health. We separately address the ALJ's grounds for discrediting each part of Garrison's 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 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.
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 unabated after April 2007.
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.
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 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 testimony.
The ALJ discredited Garrison's mental health testimony mainly on the
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 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.").
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 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 disorder 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.
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.
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.
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. 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:
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.
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 640; McCartey v. Massanari, 298 F.3d 1072, 1076-77 (9th Cir.2002); Harman, 211 F.3d at 1178; Smolen, 80 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.,
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.
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.
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.
Having concluded that Garrison satisfies all three parts of credit-as-true analysis, we now turn to the question whether 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.
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.
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.
