Karen Garrison v. Carolyn W. Colvin

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KAREN S. GARRISON, No. 12-15103

Plaintiff-Appellant,

D.C. No.

v. 2:10-cv-02484-

JWS

CAROLYN W. COLVIN,

Commissioner of Social Security

Administration, OPINION

Defendant-Appellee.

Appeal from the United States District Court

for the District of Arizona

John W. Sedwick, District Judge, Presiding

Argued and Submitted

March 10, 2014—San Francisco, California

Filed July 14, 2014

Before: Jerome Farris, Stephen Reinhardt,

and A. Wallace Tashima, Circuit Judges.

Opinion by Judge Reinhardt

2 GARRISON V. COLVIN

SUMMARY*

Social Security

The panel reversed the district court’s order remanding

the case to the Commissioner of Social Security

Administration for further proceedings, and instead remanded

with instructions to the administrative law judge to calculate

and award Social Security disability benefits to the claimant.

The panel held that the administrative law judge (“ALJ”)

erred in assessing the medical opinion evidence. The panel

also held that the ALJ erred by failing to offer specific, clear,

and convincing reasons for discrediting the claimant’s

symptom testimony concerning her physical and mental

impairments.

The panel outlined the three-part credit-as-true standard,

each part of which must be satisfied in order for a court to

remand to an ALJ with instructions to calculate and award

benefits: (1) the record has been fully developed and further

administrative proceedings would serve no useful purpose;

(2) the ALJ has failed to provide legally sufficient reasons for

rejecting evidence, whether claimant testimony or medical

opinion; and (3) if the improperly discredited evidence were

credited as true, the ALJ would be required to find the

claimant disabled on remand. The panel held that the district

court abused its discretion by remanding for further

proceedings where the credit-as-true rule was satisfied and

the record afforded no reason to believe that the claimant was

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

GARRISON V. COLVIN 3

not, in fact, disabled. The panel held that a remand for a

calculation and award of benefits was required.

COUNSEL

Mark Caldwell, Caldwell & Ober, Phoenix, Arizona, for

Plaintiff-Appellant.

Laura H. Holland (argued), Special Assistant United States

Attorney, Social Security Administration, Office of the

General Counsel, Denver, Colorado; John S. Leonardo,

United States Attorney, Michael A. Johns, Assistant United

States Attorney, United States Attorneys’ Office, Phoenix,

Arizona; John Jay Lee (of counsel), Regional Chief Counsel,

Region VIII, Social Security Administration, Office of the

General Counsel, Denver, Colorado, for Defendant-Appellee.

OPINION

REINHARDT, Circuit Judge:

Karen Garrison appeals from a denial of Social Security

benefits, arguing that the Administrative Law Judge (“ALJ”)

erred in rejecting her symptom testimony and in assigning

little weight to the opinions of her treating medical

caretakers. In a decision that the Commissioner does not

contest, the district court determined that the ALJ erred in

assessing the medical opinion evidence and remanded the

case for further proceedings. We conclude that the ALJ also

erred in discrediting Garrison’s symptom testimony, and that

the district court abused its discretion in remanding for

further proceedings. Applying our settled “credit-as-true”

4 GARRISON V. COLVIN

rule, we reverse the judgment below with instructions to

remand this case to the ALJ for the calculation and award of

benefits.

BACKGROUND

I

Karen Garrison was born in 1970. In an application for

disability insurance benefits filed on September 7, 2007, she

stated that she has been disabled since April 17, 2007 due to

a combination of physical and mental impairments. Before

her stated disability onset date, she worked as a bus driver,

bus monitor, cashier, pizza cook, convenience store clerk, and

customer service manager.

After Garrison’s application for benefits was denied on

January 4, 2008, and after her request for reconsideration was

denied on March 12, 2008, she requested a hearing before an

ALJ. At the hearing, which was held on July 14, 2009,

Garrison presented extensive medical records to support her

claim of disability and testified at length about how her

impairments affect her daily life. The ALJ also heard

testimony from a vocational expert (“VE”). The evidence

presented at the hearing covered the period from April 2007

to June 2009, and comprehensively addressed Garrison’s

physical and mental health.

A. Physical Impairments

Since 2006, as shown by the records of Dr. Christopher

Labban, her primary care provider, Garrison has suffered

from a variety of physical ailments—including chronic neck

and back pain, degenerative joint disease, sciatica, obesity,

GARRISON V. COLVIN 5

asthma, and herniated discs. Labban’s notes from late 2006

and early-to-mid 2007 reveal that, despite a variety of

attempted treatments, many of these medical conditions

persisted or worsened.1 Garrison’s chronic neck and back

pain was an especially serious problem: nothing seemed to

help, it began interfering with her daily life, and the pain

started slowly creeping into her shoulders, arms, and legs. In

response, Labban referred Garrison to Dr. George Wang, a

neurologist. Wang started treating Garrison in September

2007 and continued treating her through June 2009, the date

of the last medical record in this case.2

When Wang first evaluated Garrison, he noted that she

reported severe neck and back pain that radiated outward and

caused other symptoms; the neck pain radiated into her upper

arms and caused numbness and tingling, and the lower back

pain caused a burning sensation that radiated into her legs.

He observed that prolonged standing aggravated her pain, as

did turning her head. In his assessment, Wang noted that

MRI results confirmed that Garrison suffered from spinal disc

protrusions and determined that her pain symptoms involved

“radicular features.” He also remarked that Garrison had

1

In early 2007, a number of MRI scans confirmed disc protrusions in

Garrison’s spine. Around the same time, Garrison briefly received

physical therapy, the treatment records for which assessed “signs and

symptoms consistent [with] low back pain due to pelvic instability and

deceased proximal musculature strength/stability.” Physical therapy

provided only partial relief, however, and Garrison was forced to stop

attending after four sessions due to insurance restrictions and financial

troubles.

2

Some of Wang’s treatment records are signed by Nurse Practitioner

Laura Kinney, with an advisement that she was acting under his direction

or supervision in preparing the notes.

6 GARRISON V. COLVIN

decreased muscle strength of the left triceps and decreased

strength of the lower extremities more distally, symptoms that

he viewed as “suggestive of cervical and lumbar

radiculopathy.” Follow-up tests performed on October 1,

2007 supported his initial diagnosis of cervical and lumbar

radiculopathy.

Wang further noted in September 2007 that Garrison

reported experiencing what she described as “seizures,” in

which her mind went blank, her body seized up, she started

shaking uncontrollably, and she heard voices yelling at her.

Wang theorized that she was suffering from panic attacks.

Garrison’s symptoms grew worse between September and

December 2007. Wang’s treatment notes indicate that

Garrison reported having experienced another “seizure” while

at the grocery store, causing her to seize up, feel like most of

her body was burning, slur her speech, and collapse.

Garrison also stated that, at night, she felt sustained twitching

in her body, “like electronic current zaps through her head.”

More significant, her burning and aching neck pain continued

to radiate into her shoulders at a 10/10 level of intensity;

Garrison stated that “she has electric jolts going up to her

head when she moves her neck” and that her arms kept falling

asleep. Garrison’s lower back pain, too, rated 10/10 in

intensity, and Wang observed that it was made worse by

prolonged standing. Noting that Garrison was very drowsy

from all of the pain medication she was taking—medication

that did not effectively control her pain—Wang cleared

Garrison for epidural shots. He also modified the

medications she was taking, which at the time included

Tegretol, Neurontin, and Baclofen.

GARRISON V. COLVIN 7

In November 2007, Dr. Ernest Griffin, a state agency

consulting physician who never examined Garrison,

completed a physical residual functional capacity assessment.

His report consists of answers to a series of check-box

questions and a few lines of explanation that do not reference

most of Garrison’s treatment records or any of her statements.

Griffith noted in his report that he did not consider any

statements by Garrison’s treating and examining physicians.

Griffin opined that Garrison could occasionally lift or carry

20 pounds, frequently lift or carry 10 pounds, stand and/or

walk for about 6 hours in an 8-hour workday, and push or

pull without limitation. He added that she could occasionally

climb ramps and stairs, kneel, crouch, and crawl, and could

frequently stoop. He opined that she had no limitations with

respect to cold, heat, wetness, humidity, noise, and vibration,

but should avoid concentrated exposure to fumes, odors,

dusts, gases, poor ventilation, and hazards.

In January 2008, consistent with his treatment records and

those of Labban over the prior months, Wang noted that

Garrison’s symptoms of “seizures” and unbearable pain

persisted unabated. Her neck and back pain still rated at

10/10 in intensity, still radiated into her arms, shoulders, and

legs, and still caused a mix of burning, numbness, and

tingling. Garrison also reported intense fatigue due to

insomnia and frequent twitching at night, as well as ongoing

“seizures” that disrupted her daily activities. One such

“seizure,” in late January 2008, caused her to shake on the

left side of her body and was accompanied by a spell of

confusion and stuttering. These symptoms, in turn, were

exacerbated by drowsiness from her medications, episodes of

weakness, and a persistence in decreased muscle strength in

her left arm and lower extremities.

8 GARRISON V. COLVIN

As of February 2008, Garrison’s pain symptoms were

only marginally less severe: she reported that her neck pain

remained at 8/10 in intensity, with jerking, numbness, and

tingling in her arms that frequently caused her to drop things,

and stated that her back pain was at 7/10 in intensity, with a

burning sensation that radiated into her legs. These and other

symptoms often caused her to lose her balance and to lean to

one side.3

Summarizing his assessment of Garrison’s symptoms on

February 20, 2008, Wang stated as follows in a “Pain

Functional Capacity (PFC) Questionnaire” that posed a series

of questions followed by check-boxes: Garrison did have

pain; this pain was “moderately severe (pain seriously affects

ability to function)”; and this pain was reasonably expected

to result from objective clinical or diagnostic findings

documented in Garrison’s medical records. Wang noted that

Garrison’s pain was precipitated by changing weather,

movement, overuse, stress, and cold, and was “frequently”

severe enough to interfere with Garrison’s attention and

concentration. Wang added that, due to her pain symptoms,

Garrison “frequently” experienced deficiencies of

concentration, persistence or pace that resulted in a failure to

complete tasks in a timely manner.

In March 2008, Dr. Eric Feldman, to whom Garrison had

been sent for a consultation, remarked that Garrison had been

experiencing neck and back pain “for the past year,” and that

she had suffered “a fairly severe pain throughout the neck,

scapular area, thoracic and lumbar spine.” Feldman observed

that neither physical therapy nor a cervical epidural steroid

3

In February 2008, an EEG test largely ruled out seizures as the cause

of Garrison’s spells of jerking, stuttering, confusion, and hallucinations.

GARRISON V. COLVIN 9

injection had afforded Garrison much relief, that her burning

pain remained constant, and that she was still experiencing

tingling in both hands and leg pain. His physical examination

revealed tenderness over the cervical paraspinal musculature

and facet joints, as well as over the suprascapular and

periscapular musculature. Noting limited cervical range of

motion, a variety of spinal issues, and limited rotation

bilaterally, Feldman stated that his impressions included

fibromyalgia, central hyperalgesia, and disc protrusions and

disc space narrowing.

Over the next two months, Garrison’s pain improved

somewhat. She had a hysterectomy, some of her other

symptoms abated, and a transforaminal epidural steroid

injection temporarily reduced her back and leg pain.

However, she continued to experience symptoms of

radiculopathy, including sharp pain in her neck, arms, and

shoulders.

Wang’s records show that, by June 2008, Garrison, who

had stopped a few of her medications, was again experiencing

numbness, tingling, and sharp pain in her hands, arms, and

neck. She had also experienced a “seizure” on June 15, 2008.

Wang instructed Garrison to resume some of her medications

and ordered her not to drive for at least three months. A few

weeks later, Garrison once again experienced a “seizure,” and

reported to Wang that, despite the Percocet that she was

taking every six hours, she was still in pain. By August 2008,

Garrison was again experiencing intense pain in her neck and

right shoulder—and received only partial, short-lived relief

from the Percocet.

In September 2008, Feldman performed another epidural

steroid shot, but this time the shot led to only a few days of

10 GARRISON V. COLVIN

relief from the again-chronic burning back pain, which soon

started shooting down from Garrison’s lower back into her

thighs and legs. This and other symptoms led Garrison to

have trouble keeping her balance. Wang prescribed more

Percocet and also told Garrison to start using a rolling walker

for her gait instability. Garrison saw little improvement in

the months that followed. In October 2008, even with

Percocet three times a day for pain, she reported feeling a lot

of pain radiating from the right side of her lower back into her

right leg, causing numbness and tingling. Then, in November

2008, Wang noted a mild limp, tension headaches escalating

to migraines, and ongoing cervical and lumbar radiculopathy.

After a short-lived respite from the back pain (though not

other symptoms) in December 2008—the result of another

epidural shot—Garrison again reported severe back pain in

January 2009. Feldman’s records reveal that, by this point,

Percocet had become less effective, providing partial relief

for only a few hours per dose. Garrison’s neck continued

“bothering her significantly,” and the pain from her neck

started radiating into her occipital region. Garrison was

started on new pain medications, including MS Contin, but

continued to feel numbness and tingling in her arms and legs.

These symptoms, as well as severe headaches, persisted into

February 2009.

In April 2009, Wang noted that Garrison’s headaches had

finally ceased, but also observed that she had experienced an

increase in her back pain and that this pain was still radiating

down her legs. Garrison told Wang that it felt like her feet

“are on fire,” adding that she could not walk or stand for a

long time and that her feet were tender to the touch. Wang

opined that Garrison’s “pain is affecting her ability to

function.”

GARRISON V. COLVIN 11

Garrison’s last medical record is from June 2009. In it,

Wang states as follows: “The patient states she [continues]

to have constant pain to her lower back and neck rated as 6 on

0–10 pain scale. She continues to have numbness and

tingling to her bilateral lower extremities, greater on the right.

The patient states she continues to have some lower extremity

weakness. She states her pain is aggravated by sitting and

standing for long periods.” Wang once again recorded his

impression that Garrison’s pain “is affecting her ability to

function,” noting that her drugs were not providing adequate

relief.

B. Mental Health Issues

Throughout the relevant time period, Garrison struggled

with a variety of diagnosed mental impairments, including

bipolar disorder, anxiety, bouts of insomnia, auditory and

visual hallucinations, and paranoia. Her treating medical

caretakers also came to view her “seizures” (sometimes

called “pseudo-seizures” in her treatment records) as the

result of psychiatric issues.

In September 2007, Garrison visited Nurse Practitioner

Susan Anderson for the first time. Anderson, who would

become Garrison’s primary psychiatric care giver, noted that

Garrison suffered from insomnia, anxiety, depressive

symptoms, nightmares, and flashbacks. Anderson diagnosed

post-traumatic stress disorder and possible bipolar disorder.

She also recorded a Global Assessment of Function (GAF)

score of 50.4 Later that month, Anderson noted that Garrison

4

“A GAF score is a rough estimate of an individual’s psychological,

social, and occupational functioning used to reflect the individual’s need

for treatment.” Vargas v. Lambert, 159 F.3d 1161, 1164 n.2 (9th Cir.

12 GARRISON V. COLVIN

had recently suffered another “seizure” and, more important,

that Garrison was having trouble with her medication.

Garrison stated that she felt electric shocks going through her

body, and added that she alternated between feeling very

depressed and feeling like she had superpowers that would let

her lift piles of wood in the heat.

Two months later, in November 2007, Dr. Wayne General

examined Garrison at the behest of a state agency. He

concluded that her full scale IQ was 77, placing her in the 6th

percentile, and observed that “Karen is currently functioning

in the range of borderline intelligence.” General then noted

that Garrison’s “overall short-term memory is in the

borderline range” and that her “concentration is in the low

average range.” When subjected to further tests, Garrison

performed in “the lower average range” on simple tasks and

“very poorly” on more complex tasks requiring concentration.

1998). According to the DSM-IV, a GAF score between 41 and 50

describes “serious symptoms” or “any serious impairment in social,

occupational, or school functioning.” A GAF score between 51 to 60

describes “moderate symptoms” or any moderate difficulty in social,

occupational, or school functioning.” Although GAF scores, standing

alone, do not control determinations of whether a person’s mental

impairments rise to the level of a disability (or interact with physical

impairments to create a disability), they may be a useful measurement.

We note, however, that GAF scores are typically assessed in controlled,

clinical settings that may differ from work environments in important

respects. See, e.g., Titles II & XVI: Capability to Do Other Work-

Themedical-Vocational Rules As A Framework for Evaluating Solely

Nonexertional Impairments, SSR 85-15, 1983-1991 Soc. Sec. Rep. Serv.

343 (S.S.A 1985) (“The mentally impaired may cease to function

effectively when facing such demands as getting to work regularly, having

their performance supervised, and remaining in the workplace for a full

day.”).

GARRISON V. COLVIN 13

Assessing Garrison’s overall mental well-being, General

made a number of diagnoses:

Axis I: 296.52 Bipolar I Disorder, Most

Recent Episode Depressed,

Moderate

995.50 Victim of Physical or

Sexual Abuse as a Child

995.81 Victim of Physical or

Sexual Abuse as an Adsult

309.81 Posttraumatic Stress

Disorder, Acute, Chronic, Delayed

Onset

304.80 Polysubstance

Dependence, Alcohol,

Amphetamines, Cannabis and

Cocaine in Full, Sustained

Remission by self-report

Axis II: V62.89 Borderline Intellectual

Functioning, by examination

Axis III: Overweight, joint disease (neck

and back) and arthritis, by referral

history; migraine cephalgia by

self-report

General concluded that Garrison’s “prognosis for returning to

work is currently poor, as she had difficulty maintaining

concentration and manifested a borderline short-term

14 GARRISON V. COLVIN

memory. She did not have sufficient emotional control, and

broke into tears three times during test administration. Her

ability to perform work-related tasks is currently inadequate

based on cognitive functions such as attention, concentration,

processing speed and short-term memory.”

In December 2007, Anderson noted that Garrison’s mood

was “unstable,” that Garrison was dealing with several family

issues, and that Garrison was experiencing intense anxiety

and severe racing thoughts. Anderson assessed a GAF score

of 55, with a continued diagnosis of Bipolar Disorder II and

PTSD. Garrison’s attention and concentration, as well as her

insight and judgment, were only “fair.” Garrison’s condition

did not materially change over the next few months. In

January 2008, despite slight improvement due to use of

Abilify, Anderson’s records show that Garrison remained

anxious and deeply paranoid, with a GAF score of 55–60.

That month, Dr. Adrianne Gallucci, Psy.D., a state agency

consultant, reviewed some of Anderson’s medical records and

filled out a check-box form to state her conclusions. Gallucci

opined that Garrison’s impairments were “severe but not

expected to last 12 months,” and identified “[c]oexisting

[n]onmental [i]mpairment(s) that require referral to another

medical specialty.” Gallucci checked off the boxes for

affective disorders, mental retardation, and anxiety-related

disorders. Under affective disorders, Gallucci marked bipolar

disorder. In a summary section, Gallucci checked boxes for

“mild” degree of limitation of function in “restriction of

activities of daily living” and “difficulties in maintaining

social functioning.” Gallucci checked boxes for “moderate”

degree of difficulties in “maintaining concentration,

persistence, or pace.” In a brief explanation section, Gallucci

remarked that Garrison had experienced a good initial

GARRISON V. COLVIN 15

response to some medication and had started mental health

treatment, and for these reasons was not likely to suffer an

impairment lasting more than 12 months.

Anderson’s records show that, in February 2008,

Garrison’s GAF dropped to 55. In her visit, Garrison

reported hearing ghosts and spirits calling her name, a variety

of other auditory and visual hallucinations, nightmares,

severe anxiety, obsessive preoccupations, and persistent

insomnia. Her attention and concentration, as well as her

insight and judgment, remained only “fair.”

That month, Anderson completed a “Medical Assessment

of the Patient’s Ability to Perform Work Related Activity”

(“the 2008 Assessment”). In it, Anderson reported a

moderate impairment in Garrison’s ability to relate to other

people; to perform daily activities; to understand, carry out,

and remember instructions; to respond appropriately to

supervision; to respond appropriately to co-workers; and to

perform varied tasks. Anderson reported moderately severe

constriction of interests, including in Garrison’s ability to

respond to customary work pressures; ability to perform

complex tasks; ability to complete a normal

workday/workweek without interruptions from

psychologically based symptoms; and ability to perform at a

consistent pace without an unreasonable number/length of

rest periods. Anderson checked “Yes” when asked, “Have

the above limitations lasted or can they be expected to last for

12 months or longer?” Anderson also filled out the comment

section of the form, writing as follows: “Client has poor

coping skills, auditory hallucinations, unstable moods, and

severe anxiety. These psychiatric symptoms are complicated

by multiple medical problems.”

16 GARRISON V. COLVIN

In July 2008, after a short respite from some of her more

severe mental health problems—though she did experience at

least one “seizure” during that respite5—Garrison again

returned to Anderson with hallucinations, panic attacks,

insomnia, racing thoughts, blackouts, unstable mood, and

paranoia. Anderson assessed GAF scores of 45–50 and

determined that Garrison’s attention and concentration, as

well as her insight and judgment, were “limited.” One month

later, Garrison collapsed and then fainted in the middle of a

counseling session, and continued to report auditory

hallucinations, anxiety, and racing thoughts. Anderson’s

records show that Garrison’s attention and concentration, as

well as her insight and judgment, remained “limited.”

Garrison’s GAF score dropped again in September 2008,

this time to 50, and Anderson again recorded issues including

hallucinations, insomnia, anxiety, and racing thoughts. By

late September, Garrison’s issues expanded to include

overwhelming depression and paranoia. Throughout this

period, her attention and concentration, as well as her insight

and judgment, remained “limited.” Then, from November

2008 to February 2009, Garrison’s mental health improved

somewhat. Anderson recorded GAF scores ranging from 55

to 61 in this period, noting that, although Garrison remained

anxious and was at times tearful, treatment was helping to

alleviate Garrison’s more severe symptoms, including her

panic attacks, paranoia, and hallucinations.

5

From February 2008 to June 2008, while on a break from some of her

medications, Garrison worked four to five times as an “on call” teacher’s

aide and also worked a few hours per day as a bus monitor. She was fired

by the school district after having a “seizure” on the bus.

GARRISON V. COLVIN 17

As before, though, this short-lived and limited uptick in

Garrison’s mental health soon ended. By April 2009,

Garrison was suicidal and panicked, again reported racing

thoughts and pseudo-seizures, and again stated that she was

having trouble with—and had stopped some of—her

medications. Late in April 2009, Anderson assessed a GAF

score of 50 and noted that Garrison was displaying

hypomanic symptoms, sleeping less, and had only “partial”

insight and judgment.

Garrison’s GAF score remained 50 in May 2009. That

month, Anderson observed that Garrison had fainted on

several occasions when upset, was still experiencing insomnia

and racing thoughts, and still had only partial insight and

judgment. In June 2009, Garrison felt a bit better, but was

still “up and down.” Her GAF score remained 50, an

indication of “serious symptoms” or “serious impairment in

social, occupational, or school functioning,” she was still

troubled by bouts of racing thoughts and anxiety, and

Anderson was still trying, apparently with only mixed

success, to adjust her medications.

II

At the June 14, 2009 hearing before the ALJ, Garrison

testified about how her physical and mental impairments

affect her daily life. A VE also testified, mainly by

answering a series of hypothetical questions.

A. Garrison’s Testimony

At the June 14, 2009 hearing, Garrison testified that she

stopped working in April 2007 because she was “having

problems with [her] back and [her] neck,” rising to the level

18 GARRISON V. COLVIN

of “severe back pain.” She described her neck pain as a “real

sharp, burning pain,” that grew worse when she slept wrong,

picked stuff up, or bent over, and that radiated into her arms.

She added that neither physical therapy nor injections had

helped her neck pain; to the contrary, the neck injections had

caused an allergic reaction that required hospitalization. She

testified that her back pain is sharp, nagging, and constant,

that it shoots down to the back sides of her legs, that she

cannot bend down to lift or pick things up unless she is

sitting, and that the pain is exacerbated by standing or sitting

for more than 20 to 30 minutes. She added that the pain is

often so bad that she must lie down every three to four hours,

that she naps three hours per day because she is tired from the

pain, and that the pain prohibits her from picking up her

daughter, her laundry, or heavy bags of groceries. Garrison

stated that physical therapy did not alleviate her back pain

and that the epidural injections she had received helped for

only a short while. She also stated that she had gained one

hundred pounds from her medication.

Turning to her mental impairments, Garrison testified, “I

have a lot of anxiety” and “a lot of ups and downs and

depression.” She stated that she experiences panic attacks

that sometimes cause her to pass out, and that these attacks

are triggered by tasks like grocery shopping alone. She

avoids talking to people to prevent stress, occasionally

experiences suicidal thoughts, and, when she is feeling

depressed, spends days alone in her room with the light out.

When she feels “up,” however, she cannot sleep for days at a

time and experiences auditory hallucinations in which voices

criticize her for ruining her life. Garrison noted that her

“seizure” condition has improved somewhat since she started

taking Prozac.

GARRISON V. COLVIN 19

Garrison testified that her mother takes care of her,

including taking her to church, to doctors, and to the grocery

store, and doing her laundry. She stated that, although she

can carry a five pound bag of potatoes, she cannot carry a ten

pound bag (or a watermelon), and that she always carries the

lightest groceries. Describing a typical day, Garrison stated:

“Just get up, feed my daughter, call Griffey the turtle.

Sometimes I water the plants. Get myself dressed, get her

dressed. Then by the time lunchtime comes around, I’m

down for a good two, three hours. And then I’ll get back up

and make sure she’s had dinner. My mom watches her while

I’m sleeping. I’ll make sure she has dinner, and then usually

I’m back to sleep by 7:30, 8:00.”

B. The Vocational Expert’s Testimony

The VE answered a series of questions posed by the ALJ

and by Garrison’s lawyer about a hypothetical person’s

ability either to perform past relevant work or sustain the

demands of work.

The ALJ first posed this hypothetical question:

I’m asking you to consider a hypothetical

person the same age, education, and work

history as Ms. Garrison. The first question is,

this hypothetical person could perform work

frequently lifting and carrying 10 pounds,

occasionally 20 pounds; could stand and/or

walk with normal breaks about six out of eight

hours; sit with normal breaks about six out of

eight hours; no limits in pushing or pulling;

can never climb ladders, ropes, or scaffolds;

can occasionally climb ramps and stars;

20 GARRISON V. COLVIN

occasionally stoop, kneel, crouch, and crawl.

This person can occasionally reach overhead.

The person must avoid concentrated exposure

to fumes, odors, dust, gasses, poor ventilation,

and hazards. This person is restricted to

performing simple work. Could this

hypothetical person perform any of the past

relevant work?

The VE replied that such a person could perform the past

relevant work of “[t]he cashier/checker, bus monitor,

teacher’s aide, and the pizza maker.”

Next, the ALJ posed this question to the VE: “I’d ask you

to consider the same hypothetical person. This person

frequently had deficiencies of concentration, persistence, or

pace resulting in failure to complete tasks in a timely manner.

Would that person be able to sustain the mental demands of

work?” The VE replied, “No.”

Garrison’s lawyer then posed the following hypothetical

question:

[P]lease assume an individual the claimant’s

age, education, and work experience, but

assume they were limited as follows. . . . The

person had a moderately severe limitation,

and that’s defined as an impairment which

seriously affects the ability to function, and

that would be in the following areas; ability to

understand, carry out, and remember

instructions; respond appropriately to

supervision; respond, [sic.] respond

appropriate[ly] to co-workers; respond to

GARRISON V. COLVIN 21

customary work pressures; and to complete a

normal work day and work week without

interruptions from psychologically based

symptoms; to perform at a consistent pace

without an unreasonable number and length of

rest periods. Do you agree that the

cumulative effect of those moderately severe

limitations would preclude both the claimant’s

past relevant work and, and all other works?

The VE replied, “I would.”

Finally, Garrison’s lawyer asked, “Given the limitations

testified to [by Garrison], were they credible, would you

agree those would preclude both the claimant’s past relevant

work and all other work?” The VE replied, “Yes.”

III

On October 29, 2009, the ALJ issued a decision

concluding that Garrison was not disabled within the meaning

of the Social Security Act. At step one of the five-step

sequential evaluation process,6 the ALJ determined that

6

We describe the five-step sequential process at greater length infra.

For a summary of the process, see Kennedy v. Colvin, 738 F.3d 1172,

1175 (9th Cir. 2013) (“The five-step process for disability determinations

begins by asking whether a claimant is engaged in ‘substantial gainful

activity’ and considering the severity of the claimant’s impairments. See

20 C.F.R. § 416.920(a)(4)(i)–(ii). If the inquiry continues beyond the

second step, the third step asks whether the claimant’s impairment or

combination of impairments meets or equals a listing under 20 C.F.R. pt.

404, subpt. P, app. 1 and meets the duration requirement. See id.

§ 416.920(a)(4)(iii). If so, the claimant is considered disabled and benefits

are awarded, ending the inquiry. See id. If the process continues beyond

22 GARRISON V. COLVIN

Garrison had not engaged in substantial gainful activity since

April 17, 2007, the alleged onset date.7 At step two, the ALJ

found that Garrison had the following medically determinable

severe impairments: “borderline intellectual functioning,

bipolar disorder, posttraumatic stress disorders, polysubstance

dependence (in sustained remission), degenerative disc

disease of the lumbar, cervical and thoraic spine, obseity, and

asthma.” At step three, the ALJ concluded that Garrison did

not meet or medically equal any of the listed impairments in

20 C.F.R. Part 404, Subpart P, Appendix 1. At step four, the

ALJ determined that Garrison has the residual functional

capacity to perform the exertional requirements of light work

as defined in 20 C.F.R. § 404.1567(a), adding that, due to

various limitations, Garrison is limited to simple work. She

concluded that Garrison is capable of performing past

relevant work as a school bus monitor, cashier/checker, and

pizza maker. Accordingly, the ALJ determined that Garrison

had not been under a disability from April 17, 2007 through

October 29, 2009.

In assessing Garrison’s residual functional capacity, the

ALJ started by discrediting part of Garrison’s testimony. The

ALJ concluded that, while Garrison’s medically determinable

impairments could reasonably be expected to produce the

alleged symptoms, Garrison’s “statements concerning the

the third step, the fourth and fifth steps consider the claimant’s ‘residual

functional capacity’ in determining whether the claimant can still do past

relevant work or make an adjustment to other work. See id.

§ 416.920(a)(4)(iv)–(v).”).

7

The ALJ noted that Garrison had worked four to five times as a

teacher’s aide and part time as a bus monitor in early 2008, but concluded

that “[t]his work activity does not rise to the level of presumptive monthly

SGA under the Regulations.”

GARRISON V. COLVIN 23

intensity, persistence, and limiting effects of these symptoms

are not credible to the extent they are inconsistent with

finding that the claimant has no severe impairment or

combination of impairments . . . .” The ALJ reasoned that,

although Garrison had suffered mental impairments rendering

her “non functional for a good part of the period from April

2007 to the end of 2007,” Garrison’s mental health had

improved with medication. The ALJ added that Garrison’s

mental health deteriorated when she stopped taking her

medication, noted that Garrison’s GAF score had reached 60

in November 2008, and pointed out that Garrison told

Anderson in February 2009 that she was stable with her

medications.

Turning to Garrison’s testimony concerning her physical

impairments, the ALJ stated that “the claimant physically

improved in 2007 and 2008 with conservative medical

treatment, i.e., physical therapy and epidural injections.” The

ALJ also observed that Garrison helped prepare meals,

cleaned her room, talked on the phone frequently, and helped

care for her own daughter, activities that the ALJ deemed

inconsistent with Garrison’s allegations of disability. In sum,

the ALJ remarked that “there may have a [sic] short time

during the adjudicatory period in which the claimant has been

non-functional,” but “most of these times were when the

claimant was either not taking her psychotropic medications

or before she had undergone physical therapy for her

neck/back pain.”8

8

Without concluding that Garrison was a malingerer, the ALJ noted a

single inconsistency in Garrison’s testimony: whereas Garrison claimed

to have gained one hundred pounds while on medication, the medical

records showed that Garrison had gained only approximately twenty

pounds.

24 GARRISON V. COLVIN

Next, the ALJ considered the medical evidence. Citing

only Wang’s PFC Questionnaire from February 2008, and

Anderson’s 2008 Assessment (also from February 2008), the

ALJ “assign[ed] little weight to the medical opinions

reflected in these assessments, as Dr. Wang provided no

rationale for his medical conclusions and Ms. Anderson, as a

nurse practitioner, is not a psychiatrist or psychologist.” The

ALJ added: “In addition, their findings do not comport with

the improvement the claimant consistently showed when she

adhered to her medication regimen. The same critique is

applied to Ms. Anderson’s most recent medical source

statement dated June 23, 2009.” After rejecting Wang and

Anderson’s conclusions, the ALJ gave substantial weight to

the conclusions of the state agency consultants, Griffith and

General, regarding Garrison’s physical and mental residual

functional capacity. In the ALJ’s view, “their findings

limited the claimant to range [sic] of light, simple work.”

Matching this residual functional capacity assessment to the

hypothetical questions posed to the VE, the ALJ concluded

that Garrison could work as a bus monitor, pizza maker, and

cashier/checker, and therefore rejected her application.

IV

After exhausting administrative remedies, Garrison

appealed to the district court, which concluded that her case

should be remanded to the ALJ for further proceedings. In

reaching that result, the district court first concluded that the

“panoply of reasons” given by the ALJ for rejecting

Garrison’s symptom testimony was sufficiently specific,

clear, and convincing.

The district court then considered the ALJ’s decision to

give substantial weight to the state agency consultants,

GARRISON V. COLVIN 25

Griffith and General, rather than to Garrison’s treating

medical caretakers, Wang and Anderson. Focusing, like the

ALJ, on the two check-box forms that Wang and Anderson

completed in February 2008, the district court stated that the

ALJ had “provided only a perfunctory explanation of her

reasons for not giving significant weight to the opinions of

those who had been treating Claimant.” Specifically, with

respect to Wang, the ALJ failed to address “any of the

particulars of [Wang’s] lengthy treatment of Claimant and

numerous treatment notes,” said “nothing about whether Dr.

Wang’s opinion, which was based on the effect of Claimant’s

pain, is consistent or inconsistent with other evidence

regarding Claimant’s pain,” and offered only a “conclusory”

discussion of his treatment records. With respect to

Anderson, the ALJ did not recognize that a nurse practitioner

is an acceptable medical source under 20 C.F.R.

§ 404.1523(d) and failed to consider the factors set forth in 20

C.F.R. § 404.1527(c)9 in analyzing her opinion. The district

court believed that, as a result of these errors, it was “unable

to assess whether the ALJ properly accorded little weight” to

Wang and Anderson’s opinions.

Turning to Griffith and General, the district court first

noted that “Griffith had no medical records from any treating

or other examining physician to review,” and agreed with

Garrison that “it is not clear from the ALJ’s decision that she

had an adequate basis for using Dr. Griffith’s one-time

examination to displace the opinion of a treating physician

such as Dr. Wang.” The district court added that the ALJ had

misunderstood General’s report which, read properly, “adds

to the balance in favor of finding Claimant disabled, although

9

At the time of the district court’s ruling, the relevant factors were set

forth in 20 C.F.R. § 404.1527(d).

26 GARRISON V. COLVIN

the fact that the evaluation was a snapshot of her condition at

a particular point in time renders the evaluation standing

alone an insufficient basis to determine that Claimant had a

disability of the requisite duration.”

Ultimately, the district court concluded that it lacked a

sufficient explanation from the ALJ of why she declined to

give substantial weight to the opinions of Wang and

Anderson, and why she instead credited Griffith. The district

court therefore remanded to the Commissioner, stating that,

if the opinions of Wang and Anderson were properly given

little weight, Garrison would not be entitled to an award of

benefits.

Garrison timely appealed this ruling, contending that the

district court abused its discretion in remanding to the

Commissioner for further proceedings instead of remanding

for a calculation and award of benefits.

DISCUSSION

I

42 U.S.C. § 405(g) provides for judicial review of the

Social Security Administration’s disability determinations:

“The court shall have power to enter . . . a judgment

affirming, modifying, or reversing the decision of the

Commissioner of Social Security, with or without remanding

the cause for a rehearing.”

An ALJ’s disability determination should be upheld

unless it contains legal error or is not supported by substantial

evidence. See Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d

1050, 1052 (9th Cir. 2006); 42 U.S.C. §§ 405(g), 1383(c)(3).

GARRISON V. COLVIN 27

“‘Substantial evidence’ means more than a mere scintilla, but

less than a preponderance; it is such relevant evidence as a

reasonable person might accept as adequate to support a

conclusion.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th

Cir. 2007). “[W]e must consider the entire record as a whole,

weighing both the evidence that supports and the evidence

that detracts from the Commissioner’s conclusion, and may

not affirm simply by isolating a specific quantum of

supporting evidence.” Id. (citations and quotation marks

omitted). “The ALJ is responsible for determining

credibility, resolving conflicts in medical testimony, and for

resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035,

1039 (9th Cir. 1995). Where “the evidence can reasonably

support either affirming or reversing a decision, we may not

substitute our judgment for that of the [ALJ].” Id. (citation

omitted). We review only the reasons provided by the ALJ

in the disability determination and may not affirm the ALJ on

a ground upon which he did not rely. See Connett v.

Barnhart, 340 F.3d 871, 874 (9th Cir. 2003).

“[A] district court’s decision to affirm, reverse or modify

a determination of the Social Security Administration is

reviewed de novo on appeal. We also review de novo a

district court’s determination to remand a case to the

Commissioner.” Harman v. Apfel, 211 F.3d 1172, 1174 (9th

Cir. 2000) (citation omitted).

II

We conclude that the ALJ erred in rejecting Wang and

Anderson’s medical opinions, that she misunderstood

General’s opinion of Garrison’s impairments, and that she

failed to meet the requirement of offering specific, clear, and

28 GARRISON V. COLVIN

convincing reasons for discrediting Garrison’s symptom

testimony.

A. The Five-Step Sequential Process

The Social Security Act defines “disability” as the

inability to engage “in any substantial gainful activity by

reason of any medically determinable physical or mental

impairment which can be expected to result in death or which

has lasted or can be expected to last for a continuous period

of not less than 12 months.” 42 U.S.C. § 1382c(a)(3)(A). A

claimant “shall be determined to be under a disability only if

his physical or mental impairment or impairments are of such

severity that he is not only unable to do his previous work but

cannot, considering his age, education, and work experience,

engage in any other kind of substantial gainful work which

exists in the national economy, regardless of whether such

work exists in the immediate area in which he lives, or

whether a specific job vacancy exists for him, or whether he

would be hired if he applied for work.” § 1382c(a)(3)(b).

ALJs apply a five-step evaluation process to determine

whether a claimant qualifies as disabled. Ludwig v. Astrue,

681 F.3d 1047, 1048 n.1 (9th Cir. 2012). That procedure is

set forth at 20 C.F.R. § 404.1520(a)(4):

(4) The five-step sequential evaluation

process. The sequential evaluation process is

a series of five “steps” that we follow in a set

order . . . If we can find that you are disabled

or not disabled at a step, we make our

determination or decision and we do not go on

to the next step. If we cannot find that you are

disabled or not disabled at a step, we go on to

GARRISON V. COLVIN 29

the next step. Before we go from step three to

step four, we assess your residual functional

capacity . . . . We use this residual functional

capacity assessment at both step four and step

five when we evaluate your claim at these

steps. These are the five steps we follow:

(i) At the first step, we consider your work

activity, if any. If you are doing

substantial gainful activity, we will find

that you are not disabled . . .

(ii) At the second step, we consider the

medical severity of your impairment(s). If

you do not have a severe medically

determinable physical or mental

impairment that meets the duration

requirement in § 404.1509, or a

combination of impairments that is severe

and meets the duration requirement, we

will find that you are not disabled . . .

(iii) At the third step, we also consider the

medical severity of your impairment(s). If

you have an impairment(s) that meets or

equals one of our listings in appendix 1 of

this subpart and meets the duration

requirement, we will find that you are

disabled . . .

(iv) At the fourth step, we consider our

assessment of your residual functional

capacity and your past relevant work. If

30 GARRISON V. COLVIN

you can still do your past relevant work,

we will find that you are not disabled . . .

(v) At the fifth and last step, we consider

our assessment of your residual functional

capacity and your age, education, and

work experience to see if you can make an

adjustment to other work. If you can make

an adjustment to other work, we will find

that you are not disabled. If you cannot

make an adjustment to other work, we will

find that you are disabled . . .

20 C.F.R. § 404.1520(a). “The burden of proof is on the

claimant at steps one through four, but shifts to the

Commissioner at step five.” Bray v. Comm’r of Soc. Sec.

Admin., 554 F.3d 1219, 1222 (9th Cir. 2009).

At steps four and five, the ALJ determines a claimant’s

residual functional capacity (“RFC”). 20 C.F.R.

§ 416.920(e). RFC is “what [one] can still do despite [one’s]

limitations.” 20 C.F.R. § 416.945(a)(1). It is “based on all

the relevant medical and other evidence in [the] case record.”

Id. If a claimant has multiple impairments, they are all

included in the assessment. § 416.920(a)(2). The ALJ must

consider a claimant’s physical and mental abilities,

§ 416.920(b) and (c), as well as the total limiting effects

caused by medically determinable impairments and the

claimant’s subjective experiences of pain, § 416.920(e). The

RFC is used at step four to determine if a claimant can do

past relevant work and at step five to determine if a claimant

can adjust to other work. Id.

GARRISON V. COLVIN 31

If, at step four, “a claimant shows that he or she cannot

return to his or her previous job, the burden of proof shifts to

the Secretary to show that the claimant can do other kinds of

work.” Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988).

Thus, “[a]t step five, the ALJ can call upon a [VE] to testify

as to: (1) what jobs the claimant, given his or her [RFC],

would be able to do; and (2) the availability of such jobs in

the national economy.” Tackett v. Apfel, 180 F.3d 1094, 1101

(9th Cir. 1999). The ALJ may pose hypothetical questions to

the expert that “set out all of the claimant’s impairments” for

the VE’s consideration. Gamer v. Secretary of Health and

Human Servs., 815 F.2d 1275, 1279 (9th Cir. 1987). “The

ALJ’s depiction of the claimant’s disability must be accurate,

detailed, and supported by the medical record.” Tackett,

180 F.3d at 1101 (citation omitted). “The testimony of a

[VE] is valuable only to the extent that it is supported by

medical evidence” and has “no evidentiary value if the

assumptions in the hypothetical are not supported by the

record.” Magallanes v. Bowen, 881 F.2d 747, 756 (9th Cir.

1989) (citations omitted). “The [VE] then ‘“translates [these]

factual scenarios into realistic job market probabilities” by

testifying on the record to what kinds of jobs the claimant still

can perform and whether there is a sufficient number of those

jobs available in the claimant’s region or in several other

regions of the economy to support a finding of “not

disabled.”’” Tackett, 180 F.3d at 1101 (citations omitted)

(second alteration in the original).

32 GARRISON V. COLVIN

B. The ALJ Erred in Assigning Little Weight to

Wang and Anderson’s Opinions, and

Misunderstood General’s Opinion

1. Applicable Law

“In disability benefits cases . . . physicians may render

medical, clinical opinions, or they may render opinions on the

ultimate issue of disability—the claimant’s ability to perform

work.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)

(citation omitted). “In conjunction with the relevant

regulations, we have . . . developed standards that guide our

analysis of an ALJ’s weighing of medical evidence.” Ryan v.

Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).

Specifically, we “distinguish among the opinions of three

types of physicians: (1) those who treat the claimant (treating

physicians); (2) those who examine but do not treat the

claimant (examining physicians); and (3) those who neither

examine nor treat the claimant (nonexamining physicians).”

Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). “As a

general rule, more weight should be given to the opinion of

a treating source than to the opinion of doctors who do not

treat the claimant.”10 Id. (citing Winans v. Bowen, 853 F.2d

643, 647 (9th Cir. 1987)). While the opinion of a treating

physician is thus entitled to greater weight than that of an

examining physician, the opinion of an examining physician

is entitled to greater weight than that of a non-examining

10

See also 20 C.F.R. § 404.1527(c)(2) (“If we find that a treating

source’s opinion on the issue(s) of the nature and severity of your

impairment(s) is well-supported by medically acceptable clinical and

laboratory diagnostic techniques and is not inconsistent with the other

substantial evidence in your case record, we will give it controlling

weight.”).

GARRISON V. COLVIN 33

physician. See Ryan, 528 F.3d at 1198. “The weight afforded

a non-examining physician’s testimony depends ‘on the

degree to which [he] provide[s] supporting explanations for

[his] opinions.’” Id. (quoting § 404.1527(d)(3)).

“If a treating or examining doctor’s opinion is

contradicted by another doctor’s opinion, an ALJ may only

reject it by providing specific and legitimate reasons that are

supported by substantial evidence.”11 Id. This is so because,

even when contradicted, a treating or examining physician’s

opinion is still owed deference and will often be “entitled to

the greatest weight . . . even if it does not meet the test for

controlling weight.” Orn v. Astrue, 495 F.3d 625, 633 (9th

Cir. 2007). An ALJ can satisfy the “substantial evidence”

requirement by “setting out a detailed and thorough summary

of the facts and conflicting clinical evidence, stating his

interpretation thereof, and making findings.” Reddick,

157 F.3d at 725. “The ALJ must do more than state

conclusions. He must set forth his own interpretations and

explain why they, rather than the doctors’, are correct.” Id.

(citation omitted).

Where an ALJ does not explicitly reject a medical opinion

or set forth specific, legitimate reasons for crediting one

medical opinion over another, he errs. See Nguyen v. Chater,

11

Social Security regulations provide that, when a treating source’s

opinions are not given controlling weight, ALJs must apply the factors set

forth in 20 C.F.R. § 404.1527(c)(2)(i–ii) and (c)(3–6) in determining how

much weight to give each opinion. These factors are length of the

treatment relationship and the frequency of examination,

§ 404.1527(c)(2)(i), nature and extent of the treatment relationship,

§ 404.1527(c)(2)(ii), “supportability,” § 404.1527(c)(3), consistency,

§ 404.1527(c)(4), specialization, § 404.1527(c)(5), and other factors that

tend to support or contradict the opinion, § 404.1527(c)(6).

34 GARRISON V. COLVIN

100 F.3d 1462, 1464 (9th Cir. 1996). In other words, an ALJ

errs when he rejects a medical opinion or assigns it little

weight while doing nothing more than ignoring it, asserting

without explanation that another medical opinion is more

persuasive, or criticizing it with boilerplate language that fails

to offer a substantive basis for his conclusion. See id.

2. Application of Law to Fact

In a ruling that the government does not contest on

appeal, the district court correctly concluded that the ALJ did

not offer specific and legitimate reasons supported by

substantial evidence for rejecting the testimony of Wang and

Anderson. The district court also correctly concluded that the

ALJ misunderstood General’s opinion regarding Garrison’s

mental health. We briefly address this issue because the

ALJ’s significant and numerous errors in evaluating the

medical opinion evidence help clarify why these opinions are,

in fact, worthy of substantial weight and why it is appropriate

to remand this case for an award of benefits.

In evaluating Wang’s testimony, the ALJ committed a

variety of egregious and important errors: (1) she entirely

ignored most of his treatment records, including reports from

Dr. Feldman, dozens of medical test results, and Wang’s own

treatment notes; (2) she failed to recognize that the opinions

expressed in check-box form in the February 2008 PFC

Questionnaire were based on significant experience with

Garrison and supported by numerous records, and were

therefore entitled to weight that an otherwise unsupported and

unexplained check-box form would not merit12; (3) she did

12

See 20 C.F.R. § 404.1527(d)(3) (“The better an explanation a source

provides for an opinion, the more weight we will give that opinion.”).

GARRISON V. COLVIN 35

not explicitly compare Wang’s records to other medical

evidence—and therefore failed to recognize that no other

treating or examining physician disagreed with Wang, and

that Griffin, the consultant whose views differed from

Wang’s, wrote his check-box report early in November 2007,

very early in Garrison’s course of treatment, and admitted in

his report that he lacked access to Garrison’s treatment

records and statements; (4) she did not evaluate Wang’s

records for internal consistency or inconsistency in his

description of Garrison’s symptoms, an evaluation that would

have disclosed consistent reports of burning, tingling, and

numbness radiating from her back and neck into her

extremities, causing weakness and intense pain13; (5) she did

not recognize that because Wang is a specialist, his opinion

is owed greater weight as a matter of regulation14; (6) more

generally, she failed to afford the deference to which Wang

was presumptively entitled under both Social Security

regulations and our precedent as Garrison’s treating

physician15; and (6) she manufactured a conflict with respect

to the outcome of treatment by asserting that Wang’s records

showed “consistent[]” improvement, when in fact they show

consistent cervical and lumbar radiculopathy that responded

only very briefly and partially to treatment.16

13

See 20 C.F.R. § 404.1517(c)(4).

14

See 20 C.F.R. § 404.1517(c)(5).

15

See 20 C.F.R. § 404.1517(c)(2).

16

Further, there is no evidence that anyone other than the ALJ thought

that Garrison’s reports to Wang were not credible; Wang never indicated

his belief that Garrison was exaggerating or lying in her self-reported pain

symptoms. Cf. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir.

2008).

36 GARRISON V. COLVIN

The ALJ also committed a variety of errors in evaluating

Anderson’s opinion evidence. Most important, she did not

recognize that Anderson, as a nurse practitioner, qualified as

an “other source[]” that “can provide evidence to establish an

impairment.” 20 C.F.R. § 404.1513(a) and (d)(1). Further,

the ALJ committed many of the same errors in assessing

Anderson’s reports that she did in assessing Wang’s. For

example, the ALJ assigned little weight to Anderson’s 2008

and 2009 summary reports, both of which stated that Garrison

suffered a variety of moderate and moderately severe

impairments expected to last more than a year, while

apparently failing to recognize that those reports were

supported by voluminous notes. The ALJ also manufactured

a conflict by identifying two or three reports of improvement

in Garrison’s mental health and asserting, without reference

to any other treatment records or any other explanation, that

Anderson’s considered conclusions about Garrison’s overall

prognosis merited little weight.17

Finally, the ALJ completely misunderstood General’s

report. Whereas the ALJ described it as supporting a finding

that Garrison is not disabled and is capable of “light, simple

work,”General expressly stated that Garrison’s “prognosis for

returning to work is currently poor,” “she does not have

sufficient emotional control,” and “her ability to perform

work-related tasks is currently inadequate based on cognitive

17

With respect to both Wang and Anderson’s opinions, the

Commissioner suggests that the ALJ was entitled to reject their opinions

on the ground that they were reflected in mere check-box forms—e.g.,

Wang’s 2008 PFC Questionnaire and Anderson’s 2008 and 2009

Assessments. This argument rests on a mistaken factual premise. The

check-box forms did not stand alone: they reflected and were entirely

consistent with the hundreds of pages of treatment notes created by Wang

and Anderson in the course of their relationship with Garrison.

GARRISON V. COLVIN 37

functions such as attention, concentration, processing-speed

and short-term memory.” General, an examining physician,

bolstered these conclusions with diagnoses including bipolar

disorder, PTSD, and borderline intellectual functioning. The

ALJ’s belief that General’s report weighed against a finding

of disability was mistaken.

C. The ALJ failed to offer specific, clear, and

convincing reasons for discrediting Garrison’s

symptom testimony

The ALJ discredited, to the extent it was inconsistent with

her finding that Garrison is not disabled, Garrison’s testimony

about the intensity, persistence, and pace of her symptoms.

In doing so, the ALJ erred.

1. Applicable Law

An ALJ engages in a two-step analysis to determine

whether a claimant’s testimony regarding subjective pain or

symptoms is credible. “First, the ALJ must determine

whether the claimant has presented objective medical

evidence of an underlying impairment ‘which could

reasonably be expected to produce the pain or other

symptoms alleged.’” Lingenfelter, 504 F.3d at 1035–36

(quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir.

1991) (en banc) (internal quotation marks omitted)). In this

analysis, the claimant is not required to show “that her

impairment could reasonably be expected to cause the

severity of the symptom she has alleged; she need only show

that it could reasonably have caused some degree of the

symptom.” Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir.

1996). Nor must a claimant produce “objective medical

38 GARRISON V. COLVIN

evidence of the pain or fatigue itself, or the severity thereof.”

Id.

If the claimant satisfies the first step of this analysis, and

there is no evidence of malingering, “the ALJ can reject the

claimant’s testimony about the severity of her symptoms only

by offering specific, clear and convincing reasons for doing

so.”18 Smolen, 80 F.3d at 1281; see also Robbins v. Soc. Sec.

Admin., 466 F.3d 880, 883 (9th Cir. 2006) (“[U]nless an ALJ

makes a finding of malingering based on affirmative evidence

thereof, he or she may only find an applicant not credible by

making specific findings as to credibility and stating clear and

convincing reasons for each.”). This is not an easy

requirement to meet: “The clear and convincing standard is

the most demanding required in Social Security cases.”

Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th

Cir. 2002).

2. Application of Law to Fact

Garrison testified about her physical and mental health.

We separately address the ALJ’s grounds for discrediting

each part of Garrison’s testimony.

a. Garrison’s Pain Testimony

The ALJ rejected Garrison’s pain testimony on two

grounds: (1) Garrison improved in 2007 and 2008 with the

“conservative” treatments of epidural injections and physical

therapy; and (2) Garrison engaged in daily activities including

18

The government’s suggestion that we should apply a lesser standard

than “clear and convincing” lacks any support in precedent and must be

rejected.

GARRISON V. COLVIN 39

talking on the phone, preparing meals, cleaning her room, and

helping to care for her daughter.

The first of these reasons is belied by the evidence and

must be rejected. Garrison’s medical records show that

physical therapy afforded her only partial and short-lived

relief of her lower back pain, and no effective relief for her

radiating neck pain.19 Turning to the epidural shots, Wang

and Feldman’s records make clear that epidural shots never

provided Garrison any relief for her neck pain, and that they

relieved Garrison’s back pain for only variable, brief periods

of time, ranging from a couple of months to a few days. The

other treatments prescribed by Wang, including pain pills,

caused side effects including intense sleepiness and

drowsiness and, even when taken several times per day,

provided only limited periods of relief from the otherwise-

constant pain.

In sum, there is no support in the record for the ALJ’s

belief that physical therapy and epidural shots alleviated

Garrison’s pain enough that her testimony regarding pain was

incredible. To the contrary, the record shows that, despite

Wang’s efforts, Garrison’s neck and back pain, which

radiated into her shoulders, arms, and legs, persisted largely

19

Garrison was forced to discontinue physical therapy early in 2007

because she could not afford it. See Smolen, 80 F.3d at 1284 (“Where a

claimant provides evidence of a good reason for not taking medication for

her symptoms, her symptom testimony cannot be rejected for not doing

so.” (citation omitted)). At no point in the treatment records did Wang or

Feldman indicate a belief that physical therapy, if resumed, would provide

Garrison with adequate relief.

40 GARRISON V. COLVIN

unabated after April 2007.20 Garrison’s testimony that she

was disabled by near-constant, intense pain is consistent with

this evidence, as is her testimony that she must take frequent

rests, has difficulty standing or sitting for more than 20 to 30

minutes, and cannot carry heavy items.

The ALJ’s other reason for discrediting Garrison’s

testimony was its supposed inconsistency with her reported

daily activities, which, again, included talking on the phone,

preparing meals, cleaning her room, and helping to care for

her daughter. The ALJ committed two errors here. First, she

mischaracterized Garrison’s testimony. Garrison repeatedly

emphasized that in performing many daily tasks, including

caring for her daughter, she was heavily assisted by her

mother. She also made clear that she is regularly prohibited

by her pain from engaging in activities such as doing laundry,

picking up her daughter, and carrying bags that weigh more

than a few pounds. Finally, Garrison testified that after

performing such activities, she often must rest, leading her to

nap several hours per day.

Second, the ALJ erred in finding that these activities, if

performed in the manner that Garrison described, are

inconsistent with the pain-related impairments that Garrison

described in her testimony. We have repeatedly warned that

ALJs must be especially cautious in concluding that daily

activities are inconsistent with testimony about pain, because

impairments that would unquestionably preclude work and all

the pressures of a workplace environment will often be

consistent with doing more than merely resting in bed all day.

See, e.g., Smolen, 80 F.3d at 1287 n.7 (“The Social Security

20

In any event, we doubt that epidural steroid shots to the neck and

lower back qualify as “conservative” medical treatment.

GARRISON V. COLVIN 41

Act does not require that claimants be utterly incapacitated to

be eligible for benefits, and many home activities may not be

easily transferable to a work environment where it might be

impossible to rest periodically or take medication.” (citation

omitted)); Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)

(“[M]any home activities are not easily transferable to what

may be the more grueling environment of the workplace,

where it might be impossible to periodically rest or take

medication.”). Recognizing that “disability claimants should

not be penalized for attempting to lead normal lives in the

face of their limitations,” we have held that “[o]nly if [her]

level of activity were inconsistent with [a claimant’s] claimed

limitations would these activities have any bearing on [her]

credibility.” Reddick v. Chater, 157 F.3d at 722 (citations

omitted); see also Bjornson v. Astrue, 671 F.3d 640, 647 (7th

Cir. 2012) (“The critical differences between activities of

daily living and activities in a full-time job are that a person

has more flexibility in scheduling the former than the latter,

can get help from other persons . . . , and is not held to a

minimum standard of performance, as she would be by an

employer. The failure to recognize these differences is a

recurrent, and deplorable, feature of opinions by

administrative law judges in social security disability cases.”

(citations omitted)).

Here, Garrison’s daily activities, as she described them in

her testimony, were consistent with her statements about the

impairments caused by her pain. The ability to talk on the

phone, prepare meals once or twice a day, occasionally clean

one’s room, and, with significant assistance, care for one’s

daughter, all while taking frequent hours-long rests, avoiding

any heavy lifting, and lying in bed most of the day, is

consistent with the pain that Garrison described in her

42 GARRISON V. COLVIN

testimony.21 It is also consistent with an inability to function

in a workplace environment. Accordingly, the supposed

inconsistencies between Garrison’s daily activities and her

testimony do not satisfy the requirement of a clear,

convincing, and specific reason to discredit Garrison’s

testimony regarding her pain-related impairments.

b. Garrison’s Mental Health Testimony

The ALJ discredited Garrison’s mental health testimony

mainly on the ground that the record showed that Garrison’s

condition had improved due to medication at a few points

between April 2007 and June 2009. The ALJ added that

some of Garrison’s mental impairments were caused by

Garrison going off her medication. These are not clear,

convincing, and specific grounds for rejecting Garrison’s

testimony that, since April 2007, she had suffered panic

attacks, “a lot of ups and downs and depression,” severe

anxiety, occasional suicidal thoughts, and bouts of paranoia

and mania—symptoms that caused major difficulties with

social functioning and responding to such stresses as

shopping unaccompanied for groceries.

As we have emphasized while discussing mental health

issues, it is error to reject a claimant’s testimony merely

because symptoms wax and wane in the course of treatment.

Cycles of improvement and debilitating symptoms are a

common occurrence, and in such circumstances it is error for

an ALJ to pick out a few isolated instances of improvement

21

It is also consistent with the mental health impairments that Garrison

described in her testimony—impairments that undoubtedly interacted with

her physical impairments in a manner that makes her testimony even more

credible.

GARRISON V. COLVIN 43

over a period of months or years and to treat them as a basis

for concluding a claimant is capable of working. See, e.g.,

Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001)

(“[The treating physician’s] statements must be read in

context of the overall diagnostic picture he draws. That a

person who suffers from severe panic attacks, anxiety, and

depression makes some improvement does not mean that the

person’s impairments no longer seriously affect her ability to

function in a workplace.”).22 Reports of “improvement” in

the context of mental health issues must be interpreted with

an understanding of the patient’s overall well-being and the

nature of her symptoms. See Ryan, 528 F.3d at 1200–01

(“Nor are the references in [a doctor’s] notes that Ryan’s

anxiety and depression were ‘improving’ sufficient to

undermine the repeated diagnosis of those conditions, or

[another doctor’s] more detailed report.”). They must also be

interpreted with an awareness that improved functioning

while being treated and while limiting environmental

stressors does not always mean that a claimant can function

effectively in a workplace. See, e.g., Hutsell, 259 F.3d at 712

(“We also believe that the Commissioner erroneously relied

too heavily on indications in the medical record that Hutsell

22

See also Hutsell v. Massanari, 259 F.3d 707, 711 (8th Cir. 2001)

(“With regard to mental disorders, the Commissioner’s decision must take

into account evidence indicating that the claimant’s true functional ability

may be substantially less than the claimant asserts or wishes. Given the

unpredictable course of mental illness, [s]ymptom-free intervals and brief

remissions are generally of uncertain duration and marked by the

impending possibility of relapse. Moreover, [i]ndividuals with chronic

psychotic disorders commonly have their lives structured in such a way as

to minimize stress and reduce their signs and symptoms. Such individuals

may be much more impaired for work than their signs and symptoms

would indicate.” (quotation marks and citations omitted) (alterations in

the original)).

44 GARRISON V. COLVIN

was ‘doing well,’ because doing well for the purposes of a

treatment program has no necessary relation to a claimant’s

ability to work or to her work-related functional capacity.”).23

Caution in making such an inference is especially appropriate

when no doctor or other medical expert has opined, on the

basis of a full review of all relevant records, that a mental

health patient is capable of working or is prepared to return

to work. Cf. Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir.

1989) (“The ALJ’s conclusion that Rodriguez was responding

to treatment also does not provide a clear and convincing

reason for disregarding Dr. Pettinger’s opinion. No physician

opined that any improvement would allow Rodriguez to

return to work.”).

These rules clarify the nature of the ALJ’s error. Rather

than describe Garrison’s symptoms, course of treatment, and

bouts of remission, and thereby chart a course of

improvement, the ALJ improperly singled out a few periods

of temporary well-being from a sustained period of

impairment and relied on those instances to discredit

Garrison. While ALJs obviously must rely on examples to

show why they do not believe that a claimant is credible, the

data points they choose must in fact constitute examples of a

23

See also Scott v. Astrue, 647 F.3d 734, 739–40 (7th Cir. 2011) (“There

can be a great distance between a patient who responds to treatment and

one who is able to enter the workforce, and that difference is borne out in

Dr. Tate’s treatment notes. Those notes show that although Scott had

improved with treatment, she nevertheless continued to frequently

experience bouts of crying and feelings of paranoia. The ALJ was not

permitted to “cherry-pick” from those mixed results to support a denial of

benefits . . . . The very nature of bipolar disorder is that people with the

disease experience fluctuations in their symptoms, so any single notation

that a patient is feeling better or has had a ‘good day’ does not imply that

the condition has been treated.” (citations omitted))

GARRISON V. COLVIN 45

broader development to satisfy the applicable “clear and

convincing” standard. Here, the record reveals a tortuous

path: some symptoms came and went (e.g., paranoia,

hallucinations, pseudo-seizures), some symptoms persisted

nearly the whole period (e.g., insomnia, bouts of depression

and mania), and still other symptoms appear to have remained

a constant source of impairment (e.g., intense anxiety).

Garrison’s diagnoses of PTSD and bipolar remained constant

across all treatment records, and her GAF score consistently

hovered around 50 to 55. She remained in this condition even

while going to great lengths to minimize stressors in her

life—to the point that she could not go to the grocery store

alone—and, when she did try to work for a brief period, was

fired because of her mental impairments. The ALJ erred in

concluding that a few short-lived periods of temporary

improvement in Garrison’s mental health symptoms

undermined Garrison’s testimony.24

24

The ALJ also erred in concluding that Garrison must be discredited on

the ground that some—though not all—of her bouts of remission appear

to have resulted from Garrison going off some of her medications. As we

have remarked, “it is a questionable practice to chastise one with a mental

impairment for the exercise of poor judgment in seeking rehabilitation.”

Nguyen, 100 F.3d at 1465 (quotation marks and citations omitted). In

other words, we do not punish the mentally ill for occasionally going off

their medication when the record affords compelling reason to view such

departures from prescribed treatment as part of claimants’ underlying

mental afflictions. See, e.g., Martinez v. Astrue, 630 F.3d 693, 697 (7th

Cir. 2011); Spiva v. Astrue, 628 F.3d 346, 351 (7th Cir. 2010); Pate-Fires

v. Astrue, 564 F.3d 935, 945 (8th Cir. 2009). Here, the record shows that

Garrison’s occasional decisions to go “off her meds” were at least in part

a result of her underlying bipolar disorder and her other psychiatric issues.

46 GARRISON V. COLVIN

c. Conclusion

The ALJ did not offer specific, clear, and convincing

reasons for rejecting Garrison’s testimony concerning her

physical and mental impairments. In fact, the reasons given

by the ALJ not only fail this demanding standard, but also

would fail a far more forgiving inquiry, as they are plainly

belied by the record and rest upon mischaracterizations of

Garrison’s testimony.

III

Reviewing for abuse of discretion, see Harman, 211 F.3d

at 1173, we reverse the district court’s decision to remand this

case to the ALJ for further proceedings, and instead remand

to the district court with instructions to remand to the ALJ for

a calculation and award of appropriate benefits.

A. Applicable Law

Usually, “[i]f additional proceedings can remedy defects

in the original administrative proceeding, a social security

case should be remanded.” Lewin v. Schweiker, 654 F.2d

631, 635 (9th Cir. 1981). The Social Security Act, however,

makes clear that courts are empowered to affirm, modify, or

reverse a decision by the Commissioner “with or without

remanding the cause for a rehearing.” 42 U.S.C. § 405(g)

(emphasis added). Accordingly, every Court of Appeals has

recognized that in appropriate circumstances courts are free

to reverse and remand a determination by the Commissioner

with instructions to calculate and award benefits. See, e.g.,

Gentry v. Comm’r of Soc. Sec., 741 F.3d 708, 730 (6th Cir.

2014); Jones v. Astrue, 650 F.3d 772 (D.C. Cir. 2011); Punzio

v. Astrue, 630 F.3d 704, 713 (7th Cir. 2011); Salazar v.

GARRISON V. COLVIN 47

Barnhart, 468 F.3d 615, 626 (10th Cir. 2006); Hines v.

Barnhart, 453 F.3d 559, 567 (4th Cir. 2006); Seavey v.

Barnhart, 276 F.3d 1 (1st Cir. 2001); Williams v. Apfel,

204 F.3d 48 (2d Cir. 2000); McQueen v. Apfel, 168 F.3d 152,

156 (5th Cir. 1999); Davis v. Shalala, 985 F.2d 528, 534

(11th Cir. 1993); Podedworny v. Harris, 745 F.2d 210,

221–22 (3d Cir. 1984); Parsons v. Heckler, 739 F.2d 1334,

1341 (8th Cir. 1984). Courts have generally exercised this

power when it is clear from the record that a claimant is

entitled to benefits, observing on occasion that inequitable

conduct on the part of the Commissioner can strengthen,

though not control, the case for such a remand.

This Circuit clarified the scope of judicial power to

remand for an award of benefits in Varney v. Sec’y of Health

& Human Servs., 859 F.2d 1396 (9th Cir. 1988) (“Varney

II”). There, we held that “where there are no outstanding

issues that must be resolved before a proper disability

determination can be made, and where it is clear from the

administrative record that the ALJ would be required to

award benefits if the claimant’s excess pain testimony were

credited, we will not remand solely to allow the ALJ to make

specific findings regarding that testimony. Rather, we will

. . . take that testimony to be established as true.” Id. at 1401.

We explained that this credit-as-true rule is designed to

achieve fairness and efficiency:

We believe [that this] rule promotes the

objectives we have identified in prior

disability cases. Requiring the ALJs to

specify any factors discrediting a claimant at

the first opportunity helps to improve the

performance of the ALJs by discouraging

them from reaching a conclusion first, and

48 GARRISON V. COLVIN

then attempting to justify it by ignoring

competent evidence in the record that suggests

an opposite result. It helps to ensure that pain

testimony will be carefully assessed and its

importance recognized. Moreover, it avoids

unnecessary duplication in the administrative

hearings and reduces the administrative

burden caused by requiring multiple

proceedings in the same case. Perhaps most

important, by ensuring that credible

claimants’ testimony is accepted the first time

around, the rule reduces the delay and

uncertainty often found in this area of the law,

and ensures that deserving claimants will

receive benefits as soon as possible. As

already noted, applicants for disability

benefits often suffer from painful and

debilitating conditions, as well as severe

economic hardship. Delaying the payment of

benefits by requiring multiple administrative

proceedings that are duplicative and

unnecessary only serves to cause the applicant

further damage—financial, medical, and

emotional. Such damage can never be

remedied. Without endangering the integrity

of the disability determination process, a

principal goal of that process must be the

speedy resolution of disability applicants’

claims. At the same time, the rule does not

unduly burden the ALJs, nor should it result

in the wrongful award of benefits . . . [I]f

grounds for [concluding that a claimant is not

disabled] exist, it is both reasonable and

GARRISON V. COLVIN 49

desirable to require the ALJ to articulate them

in the original decision.

Id. at 1398–99 (quotation marks, citations, and alterations

omitted). In light of these concerns, we noted, “[w]here

remand would unnecessarily delay the receipt of benefits,

judgment for the claimant is appropriate.” Id. at 1399. One

year later, in Hammock v. Bowen, we held that the credit-as-

true rule applies to medical opinion evidence, not only

claimant testimony. See 879 F.2d 498 (9th Cir. 1989).

Since Varney II, we have applied the credit-as-true rule in

nearly two dozen published opinions.25 In those cases, we

have developed a workable and stable framework for

applying the credit-as-true rule. Specifically, we have

devised a three-part credit-as-true standard, each part of

which must be satisfied in order for a court to remand to an

ALJ with instructions to calculate and award benefits: (1) the

record has been fully developed and further administrative

proceedings would serve no useful purpose; (2) the ALJ has

failed to provide legally sufficient reasons for rejecting

evidence, whether claimant testimony or medical opinion;

and (3) if the improperly discredited evidence were credited

as true, the ALJ would be required to find the claimant

disabled on remand.26 See Ryan, 528 F.3d at 1202;

25

The Commissioner contends that the credit-as-true rule is invalid. As

he concedes, this argument is foreclosed by precedent. On at least one

occasion, in fact, we have specifically considered and rejected some of the

arguments advanced anew in the Commissioner’s brief. See Moisa v.

Barnhart, 367 F.3d 882, 886–87 (9th Cir. 2004).

26

This third requirement naturally incorporates what we have sometimes

described as a distinct requirement of the credit-as-true rule, namely that

50 GARRISON V. COLVIN

Lingenfelter, 504 F.3d at 104l; Orn, 495 F.3d at 640; Benecke

v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004); Smolen, 80

F.3d at 1292.

We have, in a number of cases, stated or implied that it

would be an abuse of discretion for a district court not to

remand for an award of benefits when all of these conditions

are met. See, e.g., Lingenfelter, 504 F.3d at 1041; Orn,

495 F.3d at 649; McCartey v. Massanari, 298 F.3d 1072,

1076–77 (9th Cir. 2002); Harman, 211 F.3d at 1178; Smolen,

F.3d at 1292; Lester, 81 F.3d at 834; Ramirez v. Shalala,

8 F.3d 1449, 1455 (9th Cir. 1993); Swenson v. Sullivan,

876 F.2d 683, 689 (9th Cir. 1989). In the 2003 case of

Connett v. Barnhart, 340 F.3d 871 (9th Cir. 2003), however,

we cautioned that the credit-as-true rule may not be

dispositive of the remand question in all cases. Rather,

recognizing that this rule, like most, admits of exceptions

meant to preserve the rule’s purpose, we noted that the credit-

as-true doctrine envisions “some flexibility.” Id. at 876.

Connett then concluded that under the circumstances there

present a remand for an award of benefits was not mandatory

and remanded for further proceedings. Connett, however, did

not address when such flexibility is appropriately

exercised—in other words, it did not explain when remand

for further proceedings rather than for an award of benefits

would be appropriate even though the credit-as-true rule’s

conditions are met. We have applied the credit-as-true rule

in a number of cases since Connett, but have not in a

published opinion exercised the “flexibility” noted in that

decision, nor have we clarified the nature of the “flexibility”

that we there described. See, e.g., Lingenfelter, 504 F.3d at

there are no outstanding issues that must be resolved before a

determination of disability can be made. See Smolen, 80 F.3d at 1292.

GARRISON V. COLVIN 51

1041; Orn, 495 F.3d at 649; Benecke, 379 F.3d at 595; Moisa,

367 F.3d at 887. We do so now.

Recalling that, in social security cases, “the required

analysis centers on what the record evidence shows about the

existence or non-existence of a disability,” Strauss v. Comm’r

of the Soc. Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011),

Connett’s “flexibility” is properly understood as requiring

courts to remand for further proceedings when, even though

all conditions of the credit-as-true rule are satisfied, an

evaluation of the record as a whole creates serious doubt that

a claimant is, in fact, disabled. That interpretation best aligns

the credit-as-true rule, which preserves efficiency and

fairness in a process that can sometimes take years before

benefits are awarded to needy claimants, with the basic

requirement that a claimant be disabled in order to receive

benefits. Thus, when we conclude that a claimant is

otherwise entitled to an immediate award of benefits under

the credit-as-true analysis, Connett allows flexibility to

remand for further proceedings when the record as a whole

creates serious doubt as to whether the claimant is, in fact,

disabled within the meaning of the Social Security Act.

As we explain infra, here the district court abused its

discretion by remanding for further proceedings where the

credit-as-true rule is satisfied and the record afforded no

reason to believe that Garrison is not, in fact, disabled.27

27

The district court’s error is understandable in light of our prior failure

to make clear the relationship between Connick and the Varney II line of

cases. Indeed, several years ago a panel of this Court suggested in dicta

that our cases had drifted far enough apart to create an intra-circuit split.

Vasquez v. Astrue, 572 F.3d 586, 593 (9th Cir. 2009). Following our

careful study of the relevant cases, however, we are firmly convinced that

they may be fully and fairly reconciled in the manner described herein.

52 GARRISON V. COLVIN

B. Application of Law to Fact

Garrison unquestionably satisfies all three conditions of

the credit-as-true rule. First, there is no need to develop the

record or convene further administrative proceedings.28

Although the Commissioner argues that further proceedings

would serve the “useful purpose” of allowing the ALJ to

revisit the medical opinions and testimony that she rejected

for legally insufficient reasons, our precedent and the

objectives of the credit-as-true rule foreclose the argument

that a remand for the purpose of allowing the ALJ to have a

mulligan qualifies as a remand for a “useful purpose” under

the first part of credit-as-true analysis. See Benecke, 379 F.3d

at 595 (“Allowing the Commissioner to decide the issue again

would create an unfair ‘heads we win; tails, let’s play again’

system of disability benefits adjudication.”); Moisa, 367 F.3d

28

The Commissioner resists this conclusion, arguing that further

proceedings are required because the ALJ did not make an RFC

determination on the basis of Wang, Anderson, and General’s opinions.

Without such an RFC determination, the Commissioner asserts, it would

be impossible for us to determine whether Garrison is disabled. This

argument is without merit. In no prior credit-as-true case have we

suggested that an award of benefits is proper only if the ALJ made a

formal RFC finding—and for good reason, because ALJs rarely base their

RFC determinations on opinions or testimony that they have rejected (and

it will always be such opinions or testimony that are at issue in credit-as-

true cases). Instead, we have considered whether the VE answered a

question describing a hypothetical person with the RFC that the claimant

would possess were the relevant opinion or testimony taken as true. See,

e.g., Lingenfelter, 504 F.3d at 1041; Varney II, 859 F.2d at 1401. Here,

the ALJ and counsel posed questions to the VE that matched both

Garrison’s testimony and the opinions of Wang, Anderson, and General,

and in response the VE answered that a person with such an RFC would

be unable to work. On that basis, we can conclude that Garrison is

disabled without remanding for further proceedings to determine anew her

RFC.

GARRISON V. COLVIN 53

at 887 (“The Commissioner, having lost this appeal, should

not have another opportunity to show that Moisa is not

credible any more than Moisa, had he lost, should have an

opportunity for remand and further proceedings to establish

his credibility.” (citation omitted)).

Second, as we have already explained at length, the ALJ

failed to provide a legally sufficient reason to reject

Garrison’s testimony and the opinions of her treating and

examining medical caretakers. We need not repeat this

analysis here.

Third, if the improperly discredited evidence were

credited as true, it is clear that the ALJ would be required to

find Garrison disabled on remand.29 Our conclusion follows

directly from our analysis of the ALJ’s errors and the strength

of the improperly discredited evidence, which we credit as

true: a treating doctor, a treating nurse practitioner, and an

examining psychologist all deemed Garrison to be disabled,

Garrison testified to an array of severe physical and mental

impairments, and a VE explicitly testified that a person with

the impairments described by Garrison or her medical

caretakers could not work. Accordingly, Garrison satisfies

the requirements of the credit-as-true standard.

Having concluded that Garrison satisfies all three parts of

credit-as-true analysis, we now turn to the question whether

29

At this stage of the credit-as-true analysis, we do not consider

arguments against crediting evidence that the ALJ did not make. In other

words, as we explained in Harman, we do not consider “whether the ALJ

might have articulated a justification for rejecting [a medical] opinion.”

211 F.3d at 1179 (emphasis added). This aspect of the credit-as-true rule

is grounded in the principles set forth in SEC v. Chenery Corp., 318 U.S.

80, 87–88 (1943).

54 GARRISON V. COLVIN

we should nonetheless exercise “flexibility” under Connett

and remand for further proceedings. Here, the answer is

clearly no. The Commissioner simply repeats all of the

arguments she has already made, asserting that the evidence

provided by the doctors and nurse practitioner who treated

Garrison should not be given much weight and that

Garrison’s testimony should not be accepted. As before, she

dwells on the bare handful of records showing slight

improvement in Garrison’s condition. At no point does she

advance any argument against this evidence that we have not

already carefully considered and rejected. Nor does she point

to anything in the record that the ALJ overlooked and explain

how that evidence casts into serious doubt Garrison’s claim

to be disabled.30 We have independently reviewed the entire

record and also have found nothing that would create doubt

as to Garrison’s entitlement to the benefits she seeks.31 The

record reflects that, since April 2007, Garrison has been

afflicted with a number of severe impairments, including

burning back pain that radiates into her legs, sharp neck pain

that radiates into her shoulders and arms, intense anxiety and

panic attacks, bipolar disorder, PTSD, and bouts of

hallucinations, paranoia, and social phobia. Even if some of

30

For example, in urging us to remand for further proceedings, the

Commissioner argues that the opinions of Wang, Anderson, and General

should be given little weight because some of them are expressed in

check-box form. The Commissioner also argues that some periods of

improvement by Garrison while she was being treated call into question

whether she was disabled. These arguments fail for the same reasons we

have already explained in addressing the ALJ’s analysis, most notably that

they are utterly belied by the record, inconsistent with our precedent, and

contradicted by the opinions of every treating and examining physician.

31

Although we do so here, we do not mean to suggest that, in every

credit-as-true case, courts must undertake an independent review of the

entire record.

GARRISON V. COLVIN 55

these symptoms have occasionally abated for brief periods of

time—all while Garrison is in ongoing treatment and has

significantly minimized environmental stressors—we, like

her numerous medical caretakers, see no reason to doubt that

she has been entirely incapable of work since April 2007.32

Thus, considering the Commissioner’s arguments and

independently reviewing the record, we see no basis for

serious doubt that Garrison is disabled.

In sum, we conclude that Garrison satisfies all three

conditions of the credit-as-true rule and that a careful review

of the record discloses no reason to seriously doubt that she

is, in fact, disabled. A remand for a calculation and award of

benefits is therefore required under our credit-as-true

precedents.

CONCLUSION

We conclude that the ALJ erred in assigning little weight

to Wang and Anderson’s opinions, erred in her

characterization of General’s opinion, and failed to offer

specific, clear, and convincing reasons for discrediting part of

Garrison’s testimony. We further conclude that the district

court abused its discretion in remanding for further

proceedings. We reverse the judgment of the district court

with instructions to remand to the ALJ for the calculation and

award of benefits.

REVERSED AND REMANDED

32

This conclusion was confirmed by careful questioning of the VE

regarding hypothetical persons at the hearing before the ALJ.