Jasim Ghanim v. Carolyn W. Colvin

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JASIM ABO GHANIM, No. 12-35804

Plaintiff-Appellant,

D.C. No.

v. 2:11-cv-01954-

BAT

CAROLYN W. COLVIN,

Commissioner of the Social Security

Administration, OPINION

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of Washington

Brian Tsuchida, Magistrate Judge, Presiding

Argued and Submitted

November 7, 2013—Seattle, Washington

Filed August 18, 2014

Before: Alex Kozinski, Chief Judge, and Richard A. Paez

and Marsha S. Berzon, Circuit Judges.

Opinion by Judge Paez;

Dissent by Chief Judge Kozinski

2 GHANIM V. COLVIN

SUMMARY*

Social Security

The panel reversed the district court’s judgment affirming

the Social Security Commissioner’s denial of an application

for Disability Insurance Benefits and Supplemental Security

Income.

The panel held that the weight the administrative law

judge (“ALJ”) accorded to the claimant’s treating providers

and the ALJ’s adverse credibility determination were not

supported by substantial evidence. The panel further held

that these ALJ errors infected the ALJ’s residual functional

capacity assessment and his determination that the claimant

was able to perform past relevant work. The panel remanded

with instructions to the district court to remand the case to the

Commissioner for further proceedings.

Chief Judge Kozinski dissented because he would find

that there was sufficient evidence in the record to uphold the

Commissioner’s decision.

*

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

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

GHANIM V. COLVIN 3

COUNSEL

Charles W. Talbot (argued), Talbot & Associates, PS,

Tacoma, Washington, for Plaintiff-Appellant.

Jenny A. Durkan, United States Attorney, Kerry Jane Keefe,

Assistant United States Attorney, Lars J. Nelson (argued),

Assistant Regional Counsel, David Morado, Regional Chief

Counsel, Region X, and Gerald J. Hill, Assistant Regional

Counsel, Social Security Administration, Seattle,

Washington, for Defendant-Appellee.

OPINION

PAEZ, Circuit Judge:

Jasim Abo Abi Shalash Abo Ghanim appeals from the

district court’s judgment affirming the Social Security

Commissioner’s denial of his application for Disability

Insurance Benefits and Supplemental Security Income. In

denying Ghanim’s application for benefits, the

Administrative Law Judge (“ALJ”) rejected the opinions of

Ghanim’s treating physician and other treating providers as

to the severity of his impairments. The ALJ also found

Ghanim’s testimony about the severity of his symptoms not

credible. On reconsideration, the Social Security

Administration (“SSA”) concluded that Ghanim was disabled

after all, but determined that the onset date for his disability

was March 28, 2012, rather than April 5, 2009, as Ghanim

originally alleged. At issue here is only whether Ghanim is

entitled to benefits for the intervening period. We hold that

the weight the ALJ accorded to Ghanim’s treating providers

and the ALJ’s adverse credibility determination are not

4 GHANIM V. COLVIN

supported by substantial evidence. We therefore reverse and

remand for further proceedings.

I. BACKGROUND

A. Ghanim’s personal and medical history

Ghanim immigrated to the United States in 1994 as a

refugee from Iraq, where he had been imprisoned and tortured

for two years. He worked consistently from 1994 to 2009 in

a variety of jobs. In 2009, Ghanim’s brother, who lived in

Iraq and worked with the United States military, was killed.

Ghanim was deeply affected by his brother’s death; he had

nightmares and trouble sleeping, became very forgetful, and

frequently felt unsafe and hopeless. After his brother’s death,

Ghanim stopped working.

1. Treating providers

In July 2009, Ghanim began receiving counseling and

psychiatric care, first at Highpoint Medical Clinic and then at

Harborview Medical Center. At Harborview Medical Center,

Ghanim met with several different medical professionals,

including Christine Elizabeth Youdelis-Flores, M.D., Nina

Spellman Geiger, ARNP, Lawrence McCann, LICSW, and

John Blatchford, LICSW. All of these individuals met with

Ghanim several times over the course of his treatment. Their

treatment notes reflect both ongoing psychological

impairment—including depression, difficulty sleeping,

nightmares, nervousness, memory loss, and anger—and some

signs of improvement—such as higher energy, higher activity

levels, and brighter mood. The treatment notes also show that

Ghanim was diagnosed with major depressive disorder and

post-traumatic stress disorder (“PTSD”), for which he was

GHANIM V. COLVIN 5

prescribed numerous anti-depressant and anti-anxiety

medications.

In March 2010, Geiger and McCann submitted a

Psychological Evaluation to the Washington State

Department of Social & Health Services. The evaluation

contained diagnoses of major depressive disorder and PTSD.

The evaluation also noted marked cognitive and social

impairment related to Ghanim’s inability to manage social

situations.1 In October 2010, Dr. Youdelis-Flores and

Blatchford sent a letter to Ghanim’s attorney, expressing their

opinion that “[d]ue to his mental illness, we feel it is highly

unlikely [Ghanim] would be able to engage in meaningful

adult activities or employment in the near future.” In support

of this opinion, they referred to his symptoms, including

nightmares, intermittent sleep, low energy, and depressed

mood, and the diagnoses of PTSD and major depression,

recurrent, with psychotic features.

2. Examining physicians

In June 2009, Ghanim was examined by Victoria

McDuffee, Ph.D., a psychologist. Ghanim reported

“increasing agitation, hypervigilance, nightmares, [and] daily

intrusive thoughts.” Dr. McDuffee observed that Ghanim

presented as “emotional[ly] labile, angry, hostile, and

resentful” and that he appeared “paranoid, suspicious of

others,” and “extremely ‘edgy.’” Dr. McDuffee administered

a mental status examination, with the following results:

(1) mini-mental status score: 30 (no cognitive impairments),

1

Gieger and McCann believed that Ghanim’s cognitive functioning

became impaired in stressful social situations. They did not diagnose him

with any cognitive disorders.

6 GHANIM V. COLVIN

(2) Beck depression score: 49 (severe depression), (3) Beck

anxiety score: 44 (severe anxiety).2 She identified a number

of severe functional limitations, including inability to: relate

appropriately to coworkers and supervisors; interact

appropriately in public; respond appropriately to, and tolerate,

the pressures and expectations of a normal work setting; and

maintain appropriate behavior. She diagnosed Ghanim with

PTSD, personality disorder, major depressive disorder, and

generalized anxiety disorder.

In December 2009, at the request of Washington’s

Department of Disability Services, Ghanim met with Wayne

C. Dees, Psy.D. Dr. Dees also administered a mental status

exam. He noted that Ghanim was “generally alert and

friendly throughout the evaluation, but mildly irritable at

times.” He also noted, however, that Ghanim’s “presentation

was consistent with anxious mood, and his affect was

blunted.” He concluded that Ghanim “endorses symptoms of

PTSD, including exaggerated startle, hypervigilence, fear and

avoidance, intrusive thoughts, emotional numbing, and

nightmares.” Ghanim fared poorly on the cognitive portion

of the test, and Dr. Dees concluded that he has a “severely

impaired ability to learn” and “[o]verall cognitive functioning

appears to be impaired.” He indicated that Ghanim was able

to complete “simple but not complex instructions.” However,

Dr. Dees thought that Ghanim’s “cognitive deficits may not

be as severe as he claims,” and stated that “malingering is

suspected based on [Ghanim’s] performance during the

evaluation.” He did not make a definitive diagnosis of

malingering, however, explaining that further evaluation was

2

Dr. McDuffee checked moderate to severe next to Ghanim’s anxiety

score. However, according to the scale on the evaluation form, a score of

44 is within the severe range.

GHANIM V. COLVIN 7

recommended before a determination could be made. He

diagnosed Ghanim with depressive disorder NOS, PTSD,

anxiety disorder NOS, and cognitive disorder NOS.3

3. Reviewing physicians

In December 2009, the state agency’s medical consultant,

Gerald L. Peterson, Ph.D., performed a mental residual

functional capacity assessment. He determined that

Ghanim’s only limitation was a moderate limitation in his

ability to complete a normal workday without interruption

from psychologically-based symptoms. Dr. Peterson

explained that Ghanim could perform “simple and complex

tasks,” was described as friendly and cooperative, socialized

with friends and attended religious services, and was able to

move and find stable employment. In February 2010, another

state medical consultant, Beth Fitterer, Ph.D., reviewed Dr.

Peterson’s mental residual functional capacity assessment.

She noted that updated medical records did not alter the

previous opinion and affirmed Dr. Peterson’s assessment.

Neither Dr. Peterson nor Dr. Fitterer ever met with Ghanim,

and it is not clear what medical records they reviewed at the

time of their respective assessments.

B. Procedural history

On October 15, 2009, Ghanim applied for Disability

Insurance Benefits and Supplemental Security Income,

claiming he had been disabled since April 5, 2009. His

application was denied. He filed a request for

3

NOS stands for “Not Otherwise Specified.” American Psychiatric

Association, Diagnostic and Statistical Manual of Mental Disorders 381

(4th ed. TR 2000) (“DSM-IV-TR”).

8 GHANIM V. COLVIN

reconsideration, which was also denied. He then requested a

hearing before an ALJ, which was held in December 2010.

At the hearing, Ghanim testified about the extent of his

impairments. He reported that even with medication, he

suffered from “constant[]” nightmares. He also testified

about his social anxiety, stating that “I . . . confine myself to

my home, just sitting there because I don’t want to go outside

and interact with people.” Finally, he explained how his

depression caused him to “neglect” himself. He would allow

dirty clothes to pile up. He was afraid to cook because his

memory was poor and he would forget things in the oven. He

testified that he depended heavily on his friend and caretaker,

Majid Al-Haider, for assistance with his basic self-care and

for much of his limited social interactions. Al-Haider would

visit him daily, help him with chores, take him outside, and

occasionally take him to spend time with his family.

The only other witness to testify at the hearing was Iris

Brookshire, a vocational expert. The ALJ sought her opinion

on whether a person with Ghanim’s limitations could perform

any gainful work in the national economy. To that end, the

ALJ posed a hypothetical question describing an individual

who had limited English proficiency but who could

understand, remember, and carry out basic tasks, had an

average ability to perform sustained work activities, could

respond appropriately to supervision and coworkers, and

could deal with changes within a stable work environment.

The vocational expert opined that such a person would be

able to perform work as a kitchen helper and a commercial

cleaner. However, if the individual had difficulty completing

a normal workday and would miss more than two days of

work per month due to his mental health impairments, the

GHANIM V. COLVIN 9

vocational expert testified, the individual would not be able

to find work as a kitchen helper or commercial cleaner.

Ghanim also submitted a letter from Al-Haider in support

of his application. Al-Haider described Ghanim’s personal

history and his current difficulties. Most notably, he stated

that Ghanim “can’t do anything without help. He can’t cook

or wash his clothes.”

The ALJ concluded that Ghanim was not disabled within

the meaning of the Social Security Act and denied his

application for benefits. Although the ALJ found that

Ghanim suffered from depression and PTSD, he concluded

that Ghanim’s functioning remained relatively unimpaired.

In doing so, he discounted the opinions of all of Ghanim’s

treating providers, finding that their opinions conflicted with

the treatment notes in the record and were based on Ghanim’s

self-reports, which the ALJ found not credible. The ALJ also

rejected Ghanim’s testimony as not credible, because (1) it

conflicted with the treatment records; (2) it conflicted with

two examining physicians’ evaluations; (3) it conflicted with

prior self-reports; (4) it was belied by the types of daily

activities Ghanim engaged in; and (5) other record evidence

cast doubt on Ghanim’s credibility. Finally, the ALJ rejected

Al-Haider’s characterization of Ghanim’s capabilities

because it conflicted with Ghanim’s own statements. Based

on his assessment of the medical and lay evidence, the ALJ

determined that Ghanim could follow basic instructions in

English, could carry out simple tasks, had the ability to work

on a regular basis, and could respond appropriately to

supervision and coworkers. Relying on the vocational

expert’s testimony, the ALJ concluded that Ghanim could

perform his past work as a kitchen helper and a commercial

cleaner.

10 GHANIM V. COLVIN

The Appeals Council denied Ghanim’s request for review.

The district court affirmed, and this appeal followed. While

this appeal was pending, Ghanim filed another request for

reconsideration with the SSA. He submitted updated medical

records, and this time, the SSA concluded that Ghanim was

disabled as of March 29, 2012. In light of this development,

this case is limited to whether Ghanim is entitled to benefits

for the period beginning April 5, 2009 and ending March 28,

2012.4

II. STANDARD OF REVIEW

“We review the district court’s order affirming the ALJ’s

denial of social security benefits de novo, and reverse only if

the ALJ’s decision was not supported by substantial evidence

in the record as a whole or if the ALJ applied the wrong legal

standard.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir.

2012) (citations omitted). “Even when the evidence is

susceptible to more than one rational interpretation, we must

uphold the ALJ’s findings if they are supported by inferences

reasonably drawn from the record.” Id. at 1111. However, in

conducting our review, we “must consider the entire record

as a whole and may not affirm simply by isolating a ‘specific

quantum of supporting evidence.’” Hill v. Astrue, 698 F.3d

1153, 1159 (9th Cir. 2012) (quoting Robbins v. Soc. Sec.

Admin., 466 F.3d 880, 882 (9th Cir. 2006)).

4

Given the result we reach, we need not address whether the SSA’s

reconsideration of its denial of benefits constituted new evidence

warranting remand under 42 U.S.C. § 405(g). See Melkonyan v. Sullivan,

501 U.S. 89, 97–99 (1991); Luna v. Astrue, 623 F.3d 1032, 1034–35 (9th

Cir. 2010).

GHANIM V. COLVIN 11

III. DISCUSSION

To determine whether a claimant is disabled, an ALJ is

required to employ a five-step sequential analysis,

determining: “(1) whether the claimant is ‘doing substantial

gainful activity’; (2) whether the claimant has a ‘severe

medically determinable physical or mental impairment’ or

combination of impairments that has lasted for more than 12

months; (3) whether the impairment ‘meets or equals’ one of

the listings in the regulations; (4) whether, given the

claimant’s ‘residual functional capacity,’ the claimant can

still do his or her ‘past relevant work’; and (5) whether the

claimant ‘can make an adjustment to other work.’” Molina,

674 F.3d at 1110 (quoting 20 C.F.R. §§ 404.1520(a),

416.920(a)).5 Ghanim argues that the ALJ failed to consider

a relevant mental impairment at step two. He further argues

that, with respect to the mental impairments the ALJ did

consider, his assessment of the medical evidence was not

supported by substantial evidence, his adverse credibility

determination was not supported by substantial evidence, and

his rejection of lay witness evidence was not supported by a

germane reason. He contends that these errors led to an

improper residual functional capacity determination at step

four. We address each argument in turn.

A. Step two analysis

Ghanim’s first argument warrants only a brief discussion.

He argues that the ALJ erred in failing to consider the

diagnosis of major depressive disorder with psychotic

5

“A claimant’s ‘residual functional capacity’ is what a claimant can still

do despite [his] limitations.” Smolen v. Chater, 80 F.3d 1273, 1291 (9th

Cir. 1996) (quoting 20 C.F.R. § 404.1545(a)).

12 GHANIM V. COLVIN

features. Ghanim never raised this argument before the

district court. Accordingly, it is waived, Greger v. Barnhart,

464 F.3d 968, 973 (9th Cir. 2006), and we do not address it

further.

B. Step four analysis

At step two, the ALJ identified two medically

determinable severe impairments: depressive disorder and

PTSD. We turn to the ALJ’s determination of Ghanim’s

residual functional capacity and ability to perform past

relevant work in light of these impairments.

1. Medical evidence

Generally, the opinion of a treating physician must be

given more weight than the opinion of an examining

physician, and the opinion of an examining physician must be

afforded more weight than the opinion of a reviewing

physician. Holohan v. Massanari, 246 F.3d 1195, 1202 (9th

Cir. 2001); 20 C.F.R. § 404.1527(c). “If a treating

physician’s opinion is well-supported by medically

acceptable clinical and laboratory diagnostic techniques and

is not inconsistent with the other substantial evidence in [the]

case record, [it will be given] controlling weight.” Orn v.

Astrue, 495 F.3d 625, 631 (9th Cir. 2007) (internal quotations

omitted) (alterations in original); see also 20 C.F.R.

§ 404.1527(c)(2)). To reject an uncontradicted opinion of a

treating physician, the ALJ must provide “clear and

convincing reasons that are supported by substantial

evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th

Cir. 2005).

GHANIM V. COLVIN 13

Even if a treating physician’s opinion is contradicted, the

ALJ may not simply disregard it. The ALJ is required to

consider the factors set out in 20 C.F.R. § 404.1527(c)(2)–(6)

in determining how much weight to afford the treating

physician’s medical opinion. Orn, 495 F.3d at 631; 20 C.F.R.

§ 404.1527(c)(2). These factors include the “[l]ength of the

treatment relationship and the frequency of examination” by

the treating physician, the “[n]ature and extent of the

treatment relationship” between the patient and the treating

physician, the “[s]upportability” of the physician’s opinion

with medical evidence, and the consistency of the physician’s

opinion with the record as a whole. 20 C.F.R.

§ 404.1527(c)(2)–(6). “In many cases, a treating source’s

medical opinion will be entitled to the greatest weight and

should be adopted, even if it does not meet the test for

controlling weight.” Orn, 495 F.3d at 631. Similarly, an ALJ

may not simply reject a treating physician’s opinions on the

ultimate issue of disability. Holohan, 246 F.3d at 1202–03.

An ALJ may only reject a treating physician’s contradicted

opinions by providing “specific and legitimate reasons that

are supported by substantial evidence.” Ryan v. Comm’r of

Soc. Sec. Admin., 528 F.3d 1194, 1198 (9th Cir. 2008);

accord Holohan, 246 F.3d at 1202–03.

Only physicians and certain other qualified specialists are

considered “[a]cceptable medical sources.” Molina, 674 F.3d

at 1111 (alteration in original); see also 20 C.F.R.

§ 404.1513(a). Nurse practitioners and therapists are

considered “other sources.” 20 C.F.R. § 404.1513(d). While

their opinions must still be evaluated, 20 C.F.R.

§ 404.1527(c), the ALJ may “discount testimony from these

‘other sources’ if the ALJ ‘gives reasons germane to each

witness for doing so.’” Molina, 674 F.3d at 1111 (quoting

14 GHANIM V. COLVIN

Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1224 (9th Cir.

2010)).

Ghanim argues that the ALJ improperly weighed the

medical evidence by, among other things, disregarding the

opinions of his treating physician and other treating

providers. The ALJ rejected Geiger and McCann’s opinions

that Ghanim had impaired cognitive and social functioning

and Dr. Youdelis-Flores and Blatchford’s opinions that

Ghanim’s mental illness made it “highly unlikely” that he

“would be able to engage in meaningful adult activities or

employment in the near future.” He rejected these opinions

because he regarded them as inconsistent with the treatment

notes and Ghanim’s daily activities and because they were

based largely on Ghanim’s self-reports.

A conflict between treatment notes and a treating

provider’s opinions may constitute an adequate reason to

discredit the opinions of a treating physician or another

treating provider. See Molina, 674 F.3d at 1111–12

(recognizing that a conflict with treatment notes is a germane

reason to reject a treating physician’s assistant’s opinion);

Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685,

692–93 (9th Cir. 2009) (holding that a conflict with treatment

notes is a specific and legitimate reason to reject treating

physician’s opinion). Here, however, substantial evidence

does not support the ALJ’s conclusion that the opinions of

Dr. Youdelis-Flores, Blatchford, Geiger, and McCann were

inconsistent with the treatment notes.

The treatment notes consistently reflect that Ghanim

continued to experience severe symptoms, including ongoing

depression and auditory hallucinations, difficulty sleeping,

nightmares, and memory loss. It is true that the notes also

GHANIM V. COLVIN 15

record some improved mood and energy level. But such

observations must be “read in context of the overall

diagnostic picture” the provider draws. Holohan, 246 F.3d at

1205; cf. Lester v. Chater, 81 F.3d 821, 833 (9th Cir. 1995)

(“Occasional symptom-free periods . . . are not inconsistent

with disability.”). The fact that a person suffering from

depression makes some improvement “does not mean that the

person’s impairment[] no longer seriously affect[s] [his]

ability to function in a workplace.” Holohan, 246 F.3d at

1205; see also Ryan, 528 F.3d at 1200–01.6

Dr. Youdelis-Flores, Blatchford, Geiger, and McCann’s

opinions about Ghanim’s cognitive and social functioning

and ability to engage in meaningful adult activities or

employment also do not conflict with Ghanim’s daily

activities. Such a conflict may justify rejecting a treating

provider’s opinion. See Morgan v. Comm’r of Soc. Sec.

Admin., 169 F.3d 595, 600–02 (9th Cir. 1999) (considering an

inconsistency between a treating physician’s opinion and a

claimant’s daily activities a specific and legitimate reason to

discount the treating physician’s opinion). But this principle

has no application here because a holistic review of the record

does not reveal an inconsistency between the treating

providers’ opinions and Ghanim’s daily activities. Although

6

Similarly, the ALJ’s example of one note, out of over one hundred

pages of treatment notes, where Blatchford states that he was surprised by

Ghanim’s request for a caretaker because Ghanim did not appear to be

impaired psychiatrically, is not substantial evidence of a conflict between

the treatment notes and the treating providers’ opinions regarding the

severity of Ghanim’s impairment. In fact, the statement is irreconcilable

with Harborview Medical Center’s own treatment plan; by that point, Dr.

Youdelis-Flores had already prescribed various medications to address

psychiatric problems, and the treatment team, including Blatchford, was

monitoring Ghanim’s progress.

16 GHANIM V. COLVIN

Ghanim performed some basic chores and occasionally

socialized, the record also reveals that he relied heavily on his

caretaker, struggled with social interactions, and limited

himself to low-stress environments. A claimant need not be

completely incapacitated to receive benefits. Smolen, 80 F.3d

at 1284 n.7. Ghanim’s limited daily activities are not in

tension with the opinions of his treating providers.

The ALJ also discounted the opinions of the treating

providers because they were based largely on Ghanim’s self-

reports, which the ALJ found not credible. If a treating

provider’s opinions are based “to a large extent” on an

applicant’s self-reports and not on clinical evidence, and the

ALJ finds the applicant not credible, the ALJ may discount

the treating provider’s opinion. Tomasetti v. Astrue, 533 F.3d

1035, 1041 (9th Cir. 2008); see also Bayliss, 427 F.3d at

1217. However, when an opinion is not more heavily based

on a patient’s self-reports than on clinical observations, there

is no evidentiary basis for rejecting the opinion. See Ryan,

528 F.3d at 1199–1200. Here, the letter from Dr. Youdelis-

Flores and Blatchford and the evaluation from Geiger and

McCann discuss the providers’ observations, diagnoses, and

prescriptions, in addition to Ghanim’s self-reports. The ALJ

offered no basis for his conclusion that these opinions were

based more heavily on Ghanim’s self-reports, and substantial

evidence does not support such a conclusion.

In sum, the ALJ improperly discounted the opinions of

Ghanim’s treating providers as to the severity of Ghanim’s

condition and his ability to work because the record revealed

occasional indicia of improvement, a minimal capacity to

perform basic chores, and some reliance by treating providers

GHANIM V. COLVIN 17

on Ghanim’s self-reports.7 This is not an adequate

evidentiary basis to reject the opinions of a treating physician

or other treating providers.8

2. Ghanim’s credibility

“In assessing the credibility of a claimant’s testimony

regarding subjective pain or the intensity of symptoms, the

ALJ engages in a two-step analysis.” Molina, 674 F.3d at

1112 (citing Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.

2009)). “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.” Vasquez, 572 F.3d at

591. “If the claimant meets the first test and there is no

evidence of malingering, the ALJ can only reject the

claimant’s testimony about the severity of the symptoms if

she gives ‘specific, clear and convincing reasons’ for the

rejection.” Id. (quoting Lingenfelter v. Astrue, 504 F.3d

7

Aside from the reasons discussed supra, the ALJ does not state any

other reason for rejecting the opinions of the treating providers.

Accordingly, we do not consider whether any other record evidence might

provide an adequate basis for rejecting any of the treating providers’

opinions.

8

In light of the ALJ’s significant errors in evaluating the opinions of

Ghanim’s treating providers, particularly the opinion of Dr. Youdelis-

Flores, we need not address whether the ALJ also erred in rejecting certain

favorable opinions of the examining physicians. We note, however, that

the ALJ did not discuss the examining physicians’ opinions that Ghanim

suffered from an anxiety disorder. As a general matter, the opinion of an

examining doctor, like the opinion of a treating doctor, “can only be

rejected for specific and legitimate reasons that are supported by

substantial evidence in the record.” Lester, 81 F.3d at 830–31.

18 GHANIM V. COLVIN

1028, 1036 (9th Cir. 2007)).9 “General findings are

insufficient; rather, the ALJ must identify what testimony is

not credible and what evidence undermines the claimant’s

complaints.” Lester, 81 F.3d at 834.

An ALJ may consider a range of factors in assessing

credibility, including “(1) ordinary techniques of credibility

evaluation, such as the claimant’s reputation for lying, prior

inconsistent statements concerning the symptoms, and other

testimony by the claimant that appears less than candid;

(2) unexplained or inadequately explained failure to seek

treatment or to follow a prescribed course of treatment; and

(3) the claimant’s daily activities.” Smolen, 80 F.3d at 1284;

accord Orn, 495 F.3d at 636. “When evidence reasonably

supports either confirming or reversing the ALJ’s decision,

we may not substitute our judgment for that of the ALJ.”

Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1196

(9th Cir. 2004).

Here, the ALJ determined that Ghanim’s “medically

determinable impairments could reasonably be expected to

cause some of the alleged symptoms; however, [Ghanim’s]

statements concerning the intensity, persistence and limiting

effects of these symptoms are not credible . . . .” The ALJ

9

We have previously stated that the “specific, clear and convincing”

standard applies unless an ALJ makes an actual finding of malingering.

Robbins, 466 F.3d at 883. This language in Robbins is in some tension

with the above language in Vasquez providing that the “specific, clear and

convincing” standard applies unless there is evidence of malingering.

Vasquez, 572 F.3d at 591. The government does not argue that a lesser

standard should apply here; instead, it argues only that the ALJ provided

clear and convincing reasons for rejecting Ghanim’s testimony as not

credible. Accordingly, we do not address whether mere evidence of

malingering might justify a lesser standard.

GHANIM V. COLVIN 19

provided several reasons for finding Ghanim’s testimony not

credible.

First, the ALJ rejected Ghanim’s testimony because he

found it inconsistent with the treatment records. In support

of his conclusion, the ALJ cited treatment notes that

discussed Ghanim’s “good eye contact, organized and logical

thought content, and focused attention.” These observations

of cognitive functioning during therapy sessions do not

contradict Ghanim’s reported symptoms of depression and

social anxiety. The ALJ also pointed to several portions of

the treatment notes that describe Ghanim as “upbeat,”

“smiling very brightly,” and “more talkative about positive

things,” and one note from Blatchford expressing surprise at

Ghanim’s request for a caretaker. As explained, however, the

treatment records must be viewed in light of the overall

diagnostic record. See Holohan, 246 F.3d at 1205, 1208;

Ryan, 528 F.3d at 1200–01. When read as a whole, the

treatment notes do not undermine Ghanim’s testimony.

Rather, they consistently reveal that, despite some occasional

signs of improvement, Ghanim continued to suffer frequent

nightmares, hallucinations, social anxiety, difficulty sleeping,

and feelings of hopelessness.

Next, the ALJ rejected Ghanim’s testimony as

inconsistent with Dr. Dees and Dr. McDuffee’s examining

evaluations. The ALJ recited facts from the examining

physicians’ evaluations about Ghanim’s cognitive capabilities

and his generally pleasant demeanor. First, the ALJ’s

reliance on Dr. McDuffee and Dr. Dees’s observations about

cognitive functioning is misplaced; Ghanim primarily

testified that nightmares, insomnia, social anxiety, and

depression—not any cognitive impairments—caused him

difficulty. Second, the ALJ improperly cherry-picked some

20 GHANIM V. COLVIN

of Dr. Dees’s characterizations of Ghanim’s rapport and

demeanor instead of considering these factors in the context

of Dr. Dees’s diagnoses and observations of impairment. See

Ryan, 528 F.3d at 1200–01; Holohan, 246 F.3d at 1205, 1208.

For instance, Dr. Dees also stated that Ghanim appeared

“quite anxious at this time” and “endorse[d] symptoms of

PTSD,” and he diagnosed Ghanim with depressive disorder

NOS, PTSD, anxiety disorder NOS.

The ALJ also concluded that Ghanim was not credible

because his testimony conflicted with his own previous

statements. First, the ALJ pointed to Ghanim’s prior self-

reports of social interactions. But Ghanim did not testify that

he never left his apartment or socialized; rather, he testified

that he often stayed home because he did not like to interact

with people and that he relied heavily on one friend. This

testimony is consistent with his prior self-reports, which

reflect only limited socializing, often with a few friends who

assisted with his chores.10 The ALJ also found Ghanim not

credible because he sometimes—but not always—requested

an interpreter. Ghanim’s periodic need for a translator does

not impugn his credibility; as Ghanim testified, when he is

particularly anxious or aggravated, understanding English

becomes more difficult. This explanation is borne out by the

record. His treating providers indicated that stress impacts

his cognitive functioning and specifically noted that he

reported difficulty speaking English when under stress.

10

The dissent states that Ghanim testified that he “only went outside

when accompanied by his friend.” Dissent at 25. The record simply does

not bear this out. Ghanim testified that his friend and caretaker Al-Haider

came to visit often, that he relied heavily on Al-Haider’s assistance, that

he did not like to go out, and that Al-Haider would come by and take him

outside. Nowhere does Ghanim testify that he never went outside without

Al-Haider.

GHANIM V. COLVIN 21

Finally, the ALJ discounted Ghanim’s testimony because he

received unemployment benefits after the alleged onset date

of his disability. Continued receipt of unemployment benefits

does cast doubt on a claim of disability, as it shows that an

applicant holds himself out as capable of working. See

Copeland v. Bowen, 861 F.2d 536, 542 (9th Cir. 1988). But

here, Ghanim actually declined unemployment benefits

within about a month of his onset date; rather than undercut

his claim of disability, this prompt refusal of unemployment

benefits supports it.

Next, the ALJ found Ghanim not credible based on his

daily activities. Engaging in daily activities that are

incompatible with the severity of symptoms alleged can

support an adverse credibility determination. See Orn,

495 F.3d at 639; Batson, 359 F.3d at 1196. But here, as

described, the daily activities, which included completing

basic chores, sometimes with the help of a friend, and

attending occasional social events, do not contradict

Ghanim’s testimony. Daily activities may also be “grounds

for an adverse credibility finding ‘if a claimant is able to

spend a substantial part of his day engaged in pursuits

involving the performance of physical functions that are

transferable to a work setting.’” Orn, 495 F.3d at 639

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

However, there is no indication here that the limited activities

Ghanim engaged in, often with the help of a friend, either

comprised a “substantial” portion of Ghanim’s day, or were

“transferrable” to a work environment. Id.; see also Smolen,

80 F.3d at 1284 n.7 (recognizing that “many home activities

may not be easily transferrable to a work environment”).

Finally, the ALJ discredited Ghanim’s testimony because

other record evidence “casts additional doubt on the

22 GHANIM V. COLVIN

reliability of [Ghanim’s] self-report and on his motivation to

alleviate symptoms.” None of the other evidence identified

by the ALJ can sustain an adverse credibility determination.

It is unclear why a clinical assessment that Ghanim exhibits

narcissistic traits would cast doubt on his credibility.

Ghanim’s pursuit of an unrelated discrimination suit is utterly

irrelevant to his credibility. Even if Ghanim’s expressed

desire to receive disability benefits casts some doubt on the

veracity of his testimony, see Matney ex rel. Matney v.

Sullivan, 981 F.2d 1016, 1020 (9th Cir. 1992), standing alone,

this scintilla of evidence cannot support an adverse credibility

determination.11

3. Lay evidence

“Lay testimony as to a claimant’s symptoms or how an

impairment affects the claimant’s ability to work is

competent evidence that the ALJ must take into account.”

Molina, 674 F.3d at 1114. An ALJ may reject a lay witness’s

testimony only “upon giving a reason germane to that

witness.” Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007).

Ghanim argues that the ALJ failed to give adequate

consideration to a statement by Majid Al-Haider, his friend

11

The dissent accuses us of being “blissfully oblivious” to the serious

problem of fraudulent disability claims. See Dissent at 24–25. We are

not. Undoubtedly, some claimants abuse the system. We simply do not

endorse our colleague’s apparent belief that those who report suffering

from depression are “often” faking it. Id. Such a statement is neither

appropriate nor useful to our task of reviewing individual claims based on

an impairment the SSA has recognized as potentially disabling. See

20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.04. Accordingly, we have

analyzed Ghanim’s claim on the facts of his case, rather than on the

possibility that others may fake such conditions.

GHANIM V. COLVIN 23

and caretaker. This issue is waived because Ghanim did not

raise it in district court. Greger, 464 F.3d at 973.

4. Ability to perform past relevant work

An ALJ may use the testimony of a vocational expert to

determine whether the claimant can perform past relevant

work. 20 C.F.R. § 404.1566(e). An ALJ may rely on a

vocational expert’s testimony that is based on a hypothetical

that “contain[s] all of the limitations that the ALJ found

credible and supported by substantial evidence in the record.”

Bayliss, 427 F.3d at 1217. However, if an ALJ’s hypothetical

is based on a residual functional capacity assessment that

does not include some of the claimant’s limitations, the

vocational expert’s testimony “has no evidentiary value.”

Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1166

(9th Cir. 2008). In determining a claimant’s residual

functional capacity, the ALJ must consider all of a claimant’s

medically determinable impairments, including those that are

not severe. 20 C.F.R. § 404.1545(a)(2).

Here, the ALJ determined that Ghanim had a residual

functional capacity to follow simple instructions in English,

to carry out simple tasks, to work on a regular basis, and to

respond appropriately to supervision and coworkers.

However, this determination is flawed because, as explained,

the ALJ improperly discounted medical evidence and

Ghanim’s testimony. Accordingly, the ALJ’s reliance on the

vocational expert’s opinion that an individual with the

aforementioned residual functional capacity could perform

the work of a kitchen helper and a commercial cleaner was

error. Carmickle, 533 F.3d 1166; Bayliss, 427 F.3d at 1217.

24 GHANIM V. COLVIN

IV. CONCLUSION

The ALJ’s reasons for discounting the opinions of

Ghanim’s treating providers and discrediting Ghanim’s

testimony are not supported by substantial evidence. These

errors infected the ALJ’s residual functional capacity

assessment and his determination that Ghanim was able to

perform past relevant work as a kitchen helper and a

commercial cleaner. We therefore reverse the district court’s

judgment affirming the ALJ’s decision and remand with

instructions to the district court to remand this case to the

Commissioner for further proceedings consistent with this

opinion.

REVERSED and REMANDED.

Chief Judge KOZINSKI, dissenting:

Ghanim doesn’t allege a physical disability—he claims to

suffer from sleeplessness, recurring nightmares and

depression. These aren’t the kind of symptoms that are

subject to clinical observations. We’d expect a treatment

provider to rely heavily on self-reporting in evaluating such

claims, and that’s exactly what happened here.

The ALJ didn’t put much stock in that self-reporting

because he doubted Ghanim’s credibility—and with good

reason. Claims of depression are often made in fraudulent

disability applications because they’re easy to fake:

Applicants can be taught “how to intentionally fail memory

tests, how to dress . . . and how to present their demeanor.”

Pervaiz Shallwani & Damian Paletta, Ex-Cops, Firefighters

GHANIM V. COLVIN 25

Charged with Disability Fraud, Wall St. J., Jan. 8, 2014, at

A2. This is a serious—and costly—problem of which many

appellate judges seem blissfully oblivious.

Ghanim’s story was riddled with inconsistencies. At the

hearing, Ghanim painted a picture of himself as a recluse who

couldn’t lead a normal life due to his mental illness. He said

he was unable to cook for himself or do his own laundry and

only went outside when accompanied by his friend.

But Ghanim’s own written submissions show that he

regularly went for walks—sometimes alone, made his own

food and had no problems performing basic grooming. He

had no difficulty interacting with other people, including his

landlord, had many friends and attended church. A woman

who knew Ghanim for ten years said he cooks, washes his

own dishes, takes walks downtown and sometimes comes to

her house to watch a movie or have lunch.

The doctor who performed Ghanim’s diagnostic exam

suspected he was malingering because he claimed to be

unable to remember his date of birth, or the city he was in at

the time of the exam. Ghanim says that his translator was

poor. But he admits he understands English, previously

interacted in English without a translator and worked briefly

for the United States Army as an educator on Iraqi language

and customs.

The ALJ’s finding that the treatment providers’ reports

conflicted with treatment notes and the record as a whole was

also backed by substantial evidence. The treatment notes

present mixed evidence, some of which supports a finding

that Ghanim is disabled, and some of which cuts the other

way. For example, Ghanim self-reported on a number of

26 GHANIM V. COLVIN

occasions that he was feeling better with medication,

although at other times he reported no improvement. And

other parts of the record, which show Ghanim engaged in a

wide range of daily activities and social interaction, conflict

with the treatment providers’ assertion that he had a mental

illness so debilitating he was unable to work.

The record might be read to support a finding that

Ghanim was disabled, but “‘where the evidence is susceptible

to more than one rational interpretation,’ we must uphold the

Commissioner’s decision.” Sandgathe v. Chater, 108 F.3d

978, 980 (9th Cir. 1997) (quoting Andrews v. Shalala,

53 F.3d 1036, 1039–40 (9th Cir. 1995)). If my colleagues

want to give Ghanim an undeserved victory, they have the

votes to do it. But it’s unfair of them to claim the ALJ’s

decision is not supported by the record when it clearly is.