Treichler v. Commissioner of Social Security Administration

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALLEN L. TREICHLER, No. 12-35944

Plaintiff-Appellant,

D.C. No.

v. 3:11-cv-01333-SI

COMMISSIONER OF SOCIAL SECURITY

ADMINISTRATION, OPINION

Defendant-Appellee.

Appeal from the United States District Court

for the District of Oregon

Michael H. Simon, District Judge, Presiding

Argued and Submitted

May 14, 2014—Portland, Oregon

Filed December 24, 2014

Before: Arthur L. Alarcón, A. Wallace Tashima, and

Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Ikuta;

Partial Concurrence and Partial Dissent by Judge Tashima

2 TREICHLER V. COMM’R OF SOC. SEC.

SUMMARY*

Social Security

The panel affirmed in part and reversed in part the district

court’s decision affirming in part and reversing and

remanding in part the Social Security Commissioner’s

denial of Allen Treichler’s application for disability insurance

benefits pursuant to the Social Security Act.

The panel held that the administrative law judge erred in

failing to provide specific reasons for rejecting Treichler’s

testimony regarding the severity of his symptoms, and

reversed the district court’s decision to the extent it affirmed

the ALJ’s credibility determination. The panel also held that

the record does not compel a finding of disability, and

remanded to the district court to remand to the agency for

further proceedings.

Judge Tashima concurred in part and dissented in part.

Judge Tashima agreed with the majority that the ALJ erred

in discrediting Treichler’s medically determinable pain and

symptom testimony based on a boilerplate credibility

determination, but disagreed with the majority’s remand for

further proceedings. Judge Tashima would hold that the three

factors of the credit-as-true rule were satisfied and that there

was little doubt that Treichler was disabled, and he would

remand for the award of benefits.

*

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

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

TREICHLER V. COMM’R OF SOC. SEC. 3

COUNSEL

James S. Coon (argued), Swanson, Thomas, Coon & Newton,

Portland, Oregon, for Plaintiff-Appellant.

Gerald J. Hill (argued), Assistant Regional Counsel; David

Morado, Regional Chief Counsel, Social Security

Administration, Seattle, Washington; S. Amanda Marshall,

United States Attorney; Kelly A. Zusman, Assistant United

States Attorney, Portland, Oregon, for Defendant-Appellee.

OPINION

IKUTA, Circuit Judge:

Allen Treichler appeals the district court’s decision

affirming in part and reversing and remanding in part the

Social Security Commissioner’s denial of his application for

disability insurance benefits pursuant to the Social Security

Act. He argues that the administrative law judge (ALJ) failed

to provide sufficient reasons for finding him not credible, and

therefore erred in rejecting his disability claim. He also

contends that in light of this error, we should remand his case

to the Commissioner for the payment of benefits. We agree

the ALJ erred in failing to identify the portions of Treichler’s

testimony the ALJ found not credible, and in failing to

explain how the ALJ arrived at that conclusion. Given the

conflicts and ambiguity that remain in the record, however,

we remand for further proceedings rather than for an award

of benefits.

4 TREICHLER V. COMM’R OF SOC. SEC.

I

Treichler worked as a tree trimmer until July 14, 2004,

when he fell out of a tree and sustained fractures to his

lumbar spine, right tibia, right heel, and left ankle. According

to the evidence in the record, Treichler’s fractures healed

well, except for his left ankle, which developed osteomyelitis

and was eventually fused.

After his surgeries, Treichler received an independent

medical examination from Dr. Mark Leadbetter, an

orthopedic surgeon, in November 2005. Treichler’s chief

complaint was lower back pain, right knee pain and ankle

pain. He also reported that he had “normal bowel and bladder

control,” but had “difficulty with evacuation.” After

reviewing Treichler’s medical history and performing a

physical examination, Dr. Leadbetter concluded that all of

Treichler’s conditions, except the fractured left ankle, were

medically stationary as of that date. He also opined that

Treichler would be able to participate in vocational assistance

activities, though weight-bearing activities would be

hampered by his left ankle condition. According to Dr.

Leadbetter, Treichler “would be able to stand for a total of

two hours at a time in an eight hour day” but “would have to

have reasonable breaks.”

On the same day as Treichler’s examination by Dr.

Leadbetter, an occupational therapist conducted an outpatient

physical capacity evaluation of Treichler. According to the

evaluation, Treichler demonstrated residual physical

capacities in the sedentary-light work range, and could sit,

stand, and walk, each for 60 minutes at a time, four to six

hours per day; could occasionally lift 20 pounds from waist

to chest level and from waist to overhead level; occasionally

TREICHLER V. COMM’R OF SOC. SEC. 5

carry ten pounds up to 50 feet; push and pull 44 pounds

occasionally; perform light, repetitive work; frequently bend

and twist; occasionally do a partial squat; and climb limited

stairs. Treichler agreed with this assessment.

In 2006, Treichler enrolled in a return-to-work program

for becoming a cost estimator. A position as a cost estimator

would require Treichler to sit for up to 30 minutes at a time

for a total of four hours a day, and stand for four hours a day.

The cost estimator could frequently change positions and

would have to walk occasionally.

A July 2006 report from Dr. Craig McNabb, Treichler’s

treating physician, stated that he had reviewed the job

description for cost estimator and felt “that [Treichler] could

tolerate this job.” The same medical report stated that

Treichler was on an “intermittent catheterization program”

for his “neurogenic bladder,” and that “[h]e seems to be

tolerating it fairly well but has continued to have some

problems with urinating and the intermittent catheterization

is allowing him to empty his bladder fully.” Dr. McNabb

also noted that Treichler was taking methadone for pain. Dr.

McNabb subsequently confirmed to the worker’s

compensation insurance company that he would release

Treichler for the position as cost estimator. Dr. Charles

Pederson, one of Treichler’s surgeons, also released Treichler

for the job.

In March 2007, Treichler filed an application for

disability and disability insurance benefits. He had been

seeing Dr. Kent Toland, a urologist, for a urinary tract

infection. Dr. Toland advised Treichler that he should

catheterize at least twice a day. A nurse had noted that

Treichler’s “bladder seems to be able to trigger a normal

6 TREICHLER V. COMM’R OF SOC. SEC.

pressure but unable to sustain enough of a contraction to

empty his bladder completely. He is having large postvoid

residuals. This is contributing to his urinary frequency and

nocturnal enuresis.” The nurse also reported Treichler’s

claims that he “wet the bed” at night. During his visits to the

urologist, Treichler complained of constipation, but denied

any fecal incontinence.

On August 20, 2007, non-examining state physician Dr.

Sharon Eder reviewed Treichler’s medical file and completed

a physical residual functional capacity assessment. Dr. Eder

concluded that Treichler could lift and/or carry 20 pounds

occasionally and ten pounds frequently, stand and/or walk for

a total of at least two hours in an eight-hour workday, sit for

a total of about six hours in an eight-hour workday, and

occasionally balance, stoop, kneel, crouch and crawl. Non-

examining state physicians Dr. Martin Kehrli and Dr. Jeffrey

Wheeler confirmed this assessment.

Treichler’s disability claim was denied on August 22,

2007, and again upon reconsideration on January 9, 2008.

Treichler filed a written request for a hearing on February 4,

2008.

In March 2008, Dr. McNabb reported that methadone

“seems to be controlling [Treichler’s pain] adequately.” A

subsequent report in September 2008 stated that while

Treichler continued to have pain, “[t]he methadone does help

significantly.” A year later, Dr. McNabb stated that the

methadone “seems to be allowing [Treichler] to be somewhat

functional without any significant decrease in his abilities,”

though it also noted that Treichler “still is not very active

because it does not take all of his pain away.” And in

September 2009, Dr. McNabb reported that Treichler “states

TREICHLER V. COMM’R OF SOC. SEC. 7

that the methadone is making his life tolerable.” While “he

still has significant amount of pain at times,” Treichler

reported that “for the most part he is able to do most of his

activities.”

The hearing before the ALJ took place in Albany, Oregon,

on December 15, 2009. Treichler submitted medical records

and testified regarding the severity and impact of his

symptoms. Treichler claimed he was “not very mobile,” and

that he frequently experienced severe pain in his back and

right ankle. Treichler testified that although he can stand and

walk, it causes pain and he has to sit down after five to ten

minutes. He also stated that he drives a car a short distance,

can do household chores if he has to, takes care of his dog,

and goes fishing occasionally. In addition, he works in his

woodworking shop when he gets bored. Treichler described

a typical day as getting up, making himself a meal, playing

with his pets, and sometimes doing yard work. According to

Treichler, his back is always in pain and he has a really bad

day “[p]robably twice a week.” On a bad day, he may stay in

bed all day. Treichler testified that methadone “takes away

a lot of it [pain], but it—I mean nothing takes away all of it.”

When asked about his urinary incontinence, Treichler

testified that his “bladder just lets go” and he “wet[s]

[him]self” around two to three times a week, “a lot at night.”

He also related that on a “bad week during the daytime” he

might lose bladder control “[p]robably three times.”

Treichler’s bladder difficulties require him to self-catheterize

up to four times a day. With regard to fecal incontinence,

Treichler claimed that “about once or twice a month” he “just

lose[s] it.”

8 TREICHLER V. COMM’R OF SOC. SEC.

His wife testified at the hearing and described the lifestyle

changes she and her husband have had to make following his

surgeries. She also described how Treichler “really has a

problem [with urinary incontinence] at night. You know, I’ve

noticed two or three times during the night a lot of times he’ll

even have to change his clothes.”

The hearing concluded with testimony from a vocational

expert. The ALJ described a hypothetical person who had the

following characteristics: the person had “the same age,

education and vocational background as Mr. Treichler”; the

person “could lift 20 pounds occasionally, 10 pounds

frequently,” could “sit[] six hours out of a normal eight-hour

work day” and “stand and walk two hours,” “should never be

required to climb,” although capable “of occasionally

balancing, stooping, kneeling, crouching and crawling”; the

person should “avoid even moderate exposure to hazards,”

and “have the option . . . . to change position at least four

times an hour to alleviate his discomfort”; and finally the

person “is going to need to be able to go to the bathroom

essentially at will, because of incontinence issues.” The

expert testified that there were a significant number of jobs

available in the national economy and in the region where

Treichler lived that could be performed by someone with

these physical characteristics, including the job of a document

sorter.

Treichler’s attorney then inquired whether a person who

“twice a week . . . [is] going to make a mess and need time to

. . . either take a shower or clean up or he’s going to be unable

to clean up and going to be a—frankly, a[n] ol[]factory

nuisance” would be able to maintain employment. The

vocational expert testified that such a person would not be

able to do so. The attorney next asked about a different

TREICHLER V. COMM’R OF SOC. SEC. 9

hypothetical person, one who “would miss more than two

days of work per month on a random and unpredictable

basis.” The expert again opined that no work would be

available for someone who would have to miss that much

work.

The ALJ followed up by asking whether allowing breaks

for self-catheterization was “an acceptable accommodation

from employers,” and the expert agreed that “it can be

worked around.” The ALJ asked whether a person could use

two 10 to 15 minute breaks for self-catheterization and still

be able to maintain employment. The vocational expert said

that those breaks were not “excessive.” But when asked by

Treichler’s attorney whether an employer would tolerate a

situation where “twice a month at randomly and

unpredictably there’s a loss of bowel control despite best

efforts,” the expert said that there would not be available

work for such a person.

The ALJ issued a written decision denying Treichler’s

application for disability on January 5, 2010. To assess

whether Treichler was disabled, the ALJ employed the

five-step sequential evaluation1 for determining disability. At

1

The five-step sequential evaluation of disability is set forth at 20 C.F.R.

§ 404.1520. Under the test:

A claimant must be found disabled if she proves:

(1) that she is not presently engaged in a substantial

gainful activity[,] (2) that her disability is severe, and

(3) that her impairment meets or equals one of the

specific impairments described in the regulations. If

the impairment does not meet or equal one of the

specific impairments described in the regulations, the

claimant can still establish a prima facie case of

10 TREICHLER V. COMM’R OF SOC. SEC.

step one, the ALJ determined that Treichler had not engaged

in substantial gainful activity since the alleged onset date of

his disability, which was the date of Treichler’s fall. The ALJ

determined at the second step that Treichler suffered from

severe impairments: status post fractures of the lumbar spine,

left wrist, right ankle, right tibia, and left tibia, neurogenic

bladder, cauda equina syndrome, and chronic pain syndrome.

The ALJ then found at step three that none of Treichler’s

impairments, either alone or in combination, met or equaled

any of the SSA’s listed impairments.

Before considering step four of the sequential evaluation

process, the ALJ had to assess Treichler’s residual functional

capacity (“RFC”), see 20 C.F.R. § 404.1520(a)(4)(iv), which

is “the most [the claimant] can still do despite [the

claimant’s] limitations.” Id. § 404.1545(a)(1). The RFC

assessment is “based on all the relevant medical and other

evidence” in the claimant’s record. Id. § 404.1520(e).

In his written decision, the ALJ set out his determination

regarding Treichler’s RFC based on the ALJ’s credibility

findings and the weight he assigned to various pieces of

disability by proving at step four that in addition to the

first two requirements, she is not able to perform any

work that she has done in the past. Once the claimant

establishes a prima facie case, the burden of proof shifts

to the agency at step five to demonstrate that the

claimant can perform a significant number of other jobs

in the national economy. This step-five determination

is made on the basis of four factors: the claimant’s

residual functional capacity, age, work experience and

education.

Hoopai v. Astrue, 499 F.3d 1071, 1074–75 (9th Cir. 2007) (internal

citations and quotation marks omitted).

TREICHLER V. COMM’R OF SOC. SEC. 11

medical evidence. According to the ALJ, Treichler could

perform light work, with some restrictions.2 After

summarizing Treichler’s testimony at the hearing regarding

his pain and limited activities, the ALJ stated that Treichler’s

“medical determinable impairments could reasonably be

expected to cause the alleged symptoms,” but that Treichler’s

“statements concerning the intensity, persistence and limiting

effects of these symptoms are not credible to the extent they

are inconsistent with the above residual functional capacity

assessment.”

The ALJ next summarized the medical evidence and

indicated what weight he assigned to the various reports. The

ALJ noted that Dr. McNabb and Dr. Pederson opined that

Treichler’s symptoms were medically stationary. The ALJ

gave great weight to Dr. Leadbetter’s conclusion that

Treichler’s condition had stabilized and Treichler could

participate in vocational assistance activities, including being

able to stand for two hours at a time with reasonable breaks.

The ALJ also gave weight to several physical capacity

evaluations that stated that Treichler had the ability to

perform sedentary-light work. Three non-examining

consulting physicians agreed that Treichler had a RFC of

light work with some movement limitations, and the ALJ

gave “these assessments controlling weight as they are

consistent with the medical evidence of record.”

2

Those restrictions were that Treichler “must change positions every 15

minutes, can occasionally balance, stoop, kneel, crouch, and crawl, can

perform unskilled work consisting of simple tasks with simple

instructions, should have no more than moderate exposure to unprotected

heights, moving machinery, and other workplace hazards, and needs to be

in close proximity to a bathroom.”

12 TREICHLER V. COMM’R OF SOC. SEC.

Moving to step four, the ALJ found that Treichler was

unable to perform any of his past relevant work as a tree

trimmer and cable installer. At step five, the ALJ relied on

the vocational expert’s testimony that jobs existed in the

national economy for someone with Treichler’s age,

education, experience, and RFC. Specifically, the vocational

expert stated that a person with Treichler’s RFC could work

as a document sorter. As a result, the ALJ held that Treichler

was not disabled under the Social Security Act, 42 U.S.C.

§ 416(i), 423(d). The Appeals Council denied Treichler’s

request for review of the ALJ’s decision.

Following an unsuccessful administrative appeal,

Treichler sought review of the Commissioner’s decision in

district court. The district court upheld the ALJ’s

determination that Treichler’s testimony regarding the

“intensity, persistence and limiting effects” of his symptoms

was not credible, but ruled that the ALJ erred by implicitly

rejecting Treichler’s wife’s testimony, without providing

germane reasons for doing so. The court therefore remanded

to the ALJ for further proceedings.

Treichler now appeals the district court’s decision

affirming the ALJ’s adverse credibility determination, and

argues that the case should be remanded for an award of

benefits. Although Treichler prevailed before the district

court, he may nevertheless appeal the decision, because it

does not grant the full measure of relief requested. See

Forney v. Apfel, 524 U.S. 266, 271 (1998).

II

We begin by considering the legal framework for

addressing Treichler’s claims that the ALJ erred in making

TREICHLER V. COMM’R OF SOC. SEC. 13

his credibility determination, and that we should therefore

remand his case for an award of benefits. We review de novo

a district court’s decision to affirm in part, reverse in part, and

remand to the Commissioner. Harman v. Apfel, 211 F.3d

1172, 1174 (9th Cir. 2000). We review the district court’s

decision to remand for further proceedings or to direct a

payment of benefits for an abuse of discretion. Id. at 1173.

A

In Title II of the Social Security Act, Congress entrusted

the Commissioner with the power and authority to enact rules

and regulations that govern the disability determination. See,

e.g., 42 U.S.C. §§ 405, 421, 423. In particular, Congress

authorized the Commissioner to “make findings of fact, and

decisions as to the rights of any individual applying for a

payment” under the Act. Id. § 405(b)(1). By law, the

disability determination is made by the Commissioner or

authorized state agencies under the Commissioner’s

supervision. See id. §§ 405, 421; 20 C.F.R. § 404.1503. If

the Commissioner’s decision is unfavorable, it must “contain

a statement of the case, in understandable language, setting

forth a discussion of the evidence, and stating the

Commissioner’s determination and the reason or reasons

upon which it is based.” 42 U.S.C. § 404(a). The statute

allows a claimant receiving an adverse decision to obtain

administrative review. Id. § 405(b)(1).

After the final decision by the Commissioner, the

claimant “may obtain a review of such decision by a civil

action” in district court. Id. § 405(g). As with other agency

decisions, federal court review of social security

determinations is limited. We disturb the Commissioner’s

decision to deny benefits “only if it is not supported by

14 TREICHLER V. COMM’R OF SOC. SEC.

substantial evidence or is based on legal error.” Andrews v.

Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995); see also Thomas

v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). For highly

fact-intensive individualized determinations like a claimant’s

entitlement to disability benefits, Congress “places a

premium upon agency expertise, and, for the sake of

uniformity, it is usually better to minimize the opportunity for

reviewing courts to substitute their discretion for that of the

agency.” Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 621

(1966). Consequently, we leave it to the ALJ to determine

credibility, resolve conflicts in the testimony, and resolve

ambiguities in the record. See 42 U.S.C. § 405(g) (directing

that the Commissioner’s “findings . . . as to any fact, if

supported by substantial evidence, shall be conclusive.”);

Andrews, 53 F.3d at 1039.

Even when the ALJ commits legal error, we uphold the

decision where that error is harmless. “We have long

recognized that harmless error principles apply in the Social

Security Act context.” Molina v. Astrue, 674 F.3d 1104,

1115 (9th Cir. 2012). An error is harmless if it is

“inconsequential to the ultimate nondisability determination,”

id. (internal quotation marks omitted), or “if the agency’s

path may reasonably be discerned,” even if the agency

“explains its decision with less than ideal clarity,” Alaska

Dep’t of Envtl. Conserv. v. EPA, 540 U.S. 461, 497 (2004)

(internal quotation marks omitted).

B

If the reviewing court determines “that the agency erred

in some respect in reaching a decision to deny benefits,” Hoa

Hong Van v. Barnhart, 483 F.3d 600, 605 (9th Cir. 2007)

(alterations omitted), and the error was not harmless, Molina,

TREICHLER V. COMM’R OF SOC. SEC. 15

674 F.3d at 1115, sentence four of § 405(g) authorizes the

court to “revers[e] the decision of the Commissioner of Social

Security, with or without remanding the cause for a

rehearing.”3 Because “a judicial judgment cannot be made to

do service for an administrative judgment,” SEC v. Chenery

Corp., 318 U.S. 80, 88 (1943), when “the record before the

agency does not support the agency action, . . . the agency has

not considered all relevant factors, or . . . the reviewing court

simply cannot evaluate the challenged agency action on the

basis of the record before it, the proper course, except in rare

circumstances, is to remand to the agency for additional

investigation or explanation.” Fla. Power & Light Co. v.

Lorion, 470 U.S. 729, 744 (1985).4 The Supreme Court has

referred to this remand requirement as the “ordinary ‘remand’

rule.” Gonzalez v. Thomas, 547 U.S. 183, 185 (2006)

(internal quotation marks omitted).

The ordinary remand rule applies equally to Social

Security cases. See, e.g., Lingenfelter v. Astrue, 504 F.3d

3

The other type of remand authorized by § 405(g) appears in the sixth

sentence, and allows the reviewing court to remand “where the

Commissioner requests a remand before answering the complaint, or

where new, material evidence is adduced that was for good cause not

presented before the agency.” Hoa Hong Van, 483 F.3d at 605.

4

The Supreme Court has not defined what “rare circumstances,” Lorion,

470 U.S. at 744, would justify a departure from the ordinary remand rule.

An early case suggested that those circumstances would arise only when

remand would be a mere formality. NLRB v. Wyman-Gordon Co.,

394 U.S. 759, 766 n.6 (1969). In later decisions, the Supreme Court has

frowned upon deviations from the ordinary remand rule and has reversed

decisions where we declined to remand to the agency after detecting an

error. See, e.g., Nat’l Ass’n of Home Builders v. Defenders of Wildlife,

551 U.S. 644, 657–58 (2007); Gonzalez v. Thomas, 547 U.S. 183,186–87

(2006); INS v. Ventura, 537 U.S. 12, 16 (2002).

16 TREICHLER V. COMM’R OF SOC. SEC.

1028, 1044 (9th Cir. 2007); Moisa v. Barnhart, 367 F.3d 882,

887 (9th Cir. 2004). While we generally remand to the

agency for “additional investigation or explanation,” Lorion,

70 U.S. at 744, Congress has granted courts some additional

flexibility in § 405(g) “to reverse or modify an administrative

decision without remanding the case for further proceedings.”

Harman v. Apfel, 211 F.3d 1172, 1177–78 (9th Cir. 2000).

“Without this additional authority, a district court could not

remand a case for immediate payment of benefits in

connection with a reversal of the Commissioner’s denial of

benefits but could only remand the case for rehearing.” Id.;

see also Garrison v. Colvin, 759 F.3d 995, 1019 (9th Cir.

2014) (noting that a Social Security case should usually be

remanded to remedy defects in the administrative proceeding,

but that “in appropriate circumstances” § 405(g) authorizes a

court to remand for benefits). We review the exercise of such

authority for an abuse of discretion, reasoning that “Congress

did not state that district courts ‘shall’ exercise this additional

power but simply gave district courts the authority to do so in

an appropriate case,” and therefore the exercise of such

authority “was intended to be discretionary.” Harman, 211

F.3d at 1178. Further, “there are sound practical reasons why

we have viewed our own decisions in this area as

discretionary,” namely because the “decision whether to

remand for further development of the administrative record

or to direct an immediate award of benefits is a fact-bound

determination that arises in an infinite variety of contexts,”

and “[n]arrow rules do not serve well in such a situation.” Id.

at 1177. Our case law strikes a balance between the ordinary

remand rule that generally guides our review of

administrative decisions and the additional flexibility

provided by § 405(g), and thus we generally remand for an

award of benefits only in “rare circumstances,” Moisa,

367 F.3d at 886, “where no useful purpose would be served

TREICHLER V. COMM’R OF SOC. SEC. 17

by further administrative proceedings and the record has been

thoroughly developed.” Hill v. Astrue, 698 F.3d 1153, 1162

(9th Cir. 2012) (internal quotation marks omitted).

We first described the circumstances where departing

from the ordinary remand rule may be permissible in Varney

v. Sec’y of Health & Human Servs., 859 F.2d 1396 (9th Cir.

1988) (Varney II). In our prior opinion in the same case,

Varney v. Sec’y of Health & Human Servs. (Varney I), we

held it was improper for the ALJ to reject the claimant’s

excess pain testimony as exaggerated and not credible “solely

on the ground that it is not fully corroborated by objective

medical evidence.” 846 F.2d 581, 582, 584 (9th Cir. 1988).

In Varney II, we determined that “no further proceedings

[were] necessary to develop the administrative record,”

859 F.2d at 1400, and there were “no outstanding issues that

must be resolved before a proper disability determination”

could be made, id. at 1401, and therefore took the unusual

step of declaring the claimant to be credible as a matter of

law, see id. at 1398, 1401 (“[I]f the Secretary fails to

articulate reasons for refusing to credit a claimant’s

subjective pain testimony, then the Secretary, as a matter of

law, has accepted that testimony as true.” (internal quotation

marks omitted)). Although such credibility determinations

are generally the perquisite of the agency, see 42 U.S.C.

§ 405(b),(g), we justified this approach as a prophylactic

measure designed to motivate the Commissioner to ensure

“that pain testimony will be carefully assessed and its

importance recognized,” id. at 1398, and also by referring to

equitable concerns about the length of time that had elapsed

since the claimant had filed her application, see id. at

1398–99. Accordingly, because it was “clear from the

administrative record that the ALJ would be required to

award benefits if the claimant’s excess pain testimony were

18 TREICHLER V. COMM’R OF SOC. SEC.

credited,” we remanded for an award of benefits instead of

further proceedings on the claimant’s credibility. Id. at 1401.

We subsequently distilled the Varney rule (sometimes

referred to as the “credit-as-true” rule) into three steps.

Under this procedure, we first ask whether the “ALJ has

failed to provide legally sufficient reasons for rejecting

evidence, whether claimant testimony or medical opinion.”

Garrison, 759 F.3d at 1020; see also Moisa, 367 F.3d at 887.

Second, if the ALJ has erred, we determine whether “the

record has been fully developed,” Garrison, 759 F.3d at

1020, whether there are “outstanding issues that must be

resolved before a determination of disability can be made,”

Moisa, 367 F.3d at 887, and whether further administrative

proceedings would be useful, see Varney II, 859 F.2d at 1399.

Administrative proceedings are generally useful where the

record “has [not] been fully developed,” Garrison, 759 F.3d

at 1020, there is a need to resolve conflicts and ambiguities,

Andrews, 53 F.3d at 1039, or the “presentation of further

evidence . . . may well prove enlightening” in light of the

passage of time, Ventura, 537 U.S. at 18. Cf. Nguyen v.

Chater, 100 F.3d 1462, 1466–67 (9th Cir. 1996) (remanding

for ALJ to apply correct legal standard, to hear any additional

evidence, and resolve any remaining conflicts); Byrnes v.

Shalala, 60 F.3d 639, 642 (9th Cir. 1995) (same); Dodrill v.

Shalala, 12 F.3d 915, 918, 919 (9th Cir. 1993) (same);

Bunnell v. Sullivan, 947 F.2d 341, 348 (9th Cir. 1991) (en

banc) (same). Where there is conflicting evidence, and not all

essential factual issues have been resolved, a remand for an

TREICHLER V. COMM’R OF SOC. SEC. 19

award of benefits is inappropriate. See, e.g., Faucher v. Sec’y

of Health & Human Servs., 17 F.3d 171, 176 (6th Cir. 1994).5

Third, if we conclude that no outstanding issues remain

and further proceedings would not be useful, we may apply

our prophylactic Varney rule, finding the relevant testimony

credible as a matter of law, see Vasquez v. Astrue, 572 F.3d

586, 600–01 (2008) (Hawkins, J., concurring) (describing

how the Varney rule has been used); Harman v. Apfel,

211 F.3d 1172, 1178–79 (9th Cir. 2000), and then determine

whether the record, taken as a whole, leaves “not the slightest

uncertainty as to the outcome of [the] proceeding,” Wyman-

Gordon, 394 U.S. at 766 n.6.

When all three elements of this Varney rule are satisfied,

a case raises the “rare circumstances” that allow us to

exercise our discretion to depart from the ordinary remand

5

The dissent appears to believe that a court should generally remand for

benefits and may remand for further proceedings only if the record is

incomplete, such as when the ALJ has not heard critical testimony from

a treating physician or if a vocational expert had not considered all

relevant testimony. Dissent at 33, 37. This is directly contrary to our

jurisprudence, which requires remand for further proceedings in all but the

rarest cases, see Moisa, 367 F.3d at 887. Indeed, a court abuses its

discretion if it remands for an award of benefits when not all factual issues

have been resolved. See, e.g., Bunnell v. Barnhart, 336 F.3d 1112,

1115–16 (9th Cir. 2003) (rejecting a petitioner’s appeal of a district court’s

remand for further proceedings instead of for an award of benefits where

there were outstanding issues relating to the severity of the petitioner’s

impairments, whether the petitioner was capable of performing sedentary

work, and whether the ALJ had to credit her testimony as true, or would

be able to adequately explain why he did not credit her pain testimony, per

Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993)).

20 TREICHLER V. COMM’R OF SOC. SEC.

rule.6 Of course, even when those “rare circumstances” are

present, “[t]he decision whether to remand a case for

additional evidence or simply to award benefits is in our

discretion,” Swenson v. Sullivan, 876 F.2d 683, 689 (9th Cir.

1989). See, e.g., Harman v. Apfel, 211 F.3d at 1178 (holding

that the exercise of authority to remand for benefits “was

intended to be discretionary and should be reviewed for abuse

of discretion”). We have frequently exercised our discretion

to remand for further proceedings, rather than for benefits.

See Connett v. Barnhart, 340 F.3d 871, 874–76 (9th Cir.

2003) (citing cases and reaffirming that the reviewing court

retains discretion to remand for further proceedings even

when the ALJ fails “to assert specific facts or reasons to

reject [the claimant]’s testimony”); see also Garrison,

759 F.3d at 1021 (noting that a district court retains the

flexibility to “remand for further proceedings when the record

as a whole creates serious doubt as to whether the claimant is,

6

Our sister circuits are generally in accord with our rule that “the court

can order the agency to provide the relief it denied only in the unusual

case in which the underlying facts and law are such that the agency has no

discretion to act in any manner other than to award or to deny benefits.”

Seavey v. Barnhart, 276 F.3d 1, 11 (1st Cir. 2001); see also Gentry v.

Comm’r of Social Sec., 741 F.3d 708, 730 (6th Cir. 2014) (remanding for

an award of benefits only where “all necessary factual issues have been

resolved, the proof of disability is strong, and opposing evidence is

lacking in substance, . . . or where the proof of disability is

overwhelming”); Williams v. Apfel, 204 F.3d 48, 50 (2d Cir. 2000)

(refusing to remand for an award of benefits because the record did not

“provide[] persuasive evidence of total disability that rendered any further

proceedings pointless”). By contrast, our prophylactic rule that a

claimant’s testimony is credible as a matter of law if the ALJ fails to

provide adequate reasons for discrediting it has been adopted only by the

Eleventh Circuit. See Hale v. Bowen, 831 F.2d 1007, 1012 (11th Cir.

1987).

TREICHLER V. COMM’R OF SOC. SEC. 21

in fact, disabled within the meaning of the Social Security

Act.”).

III

We turn now to Treichler’s claim that the ALJ erred in

ruling that Treichler’s statements about the limiting effects of

his medical problems were not credible.

The ALJ must make two findings before the ALJ can find

a claimant’s pain or symptom testimony not credible.

42 U.S.C. § 423(d)(5)(A) (explaining that “[a]n individual’s

statement as to pain or other symptoms shall not alone be

conclusive evidence of disability” absent additional findings).

“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 1036 (quoting Bunnell, 947 F.2d at 344). Second, if the

claimant has produced that evidence, and the ALJ has not

determined that the claimant is malingering, the ALJ must

provide “specific, clear and convincing reasons for” rejecting

the claimant’s testimony regarding the severity of the

claimant’s symptoms. Smolen v. Chater, 80 F.3d 1273, 1281

(9th Cir. 1996).

Because the “grounds upon which an administrative order

must be judged are those upon which the record discloses that

its action was based,” Chenery Corp., 318 U.S. at 87, the

agency must explain its reasoning. Consequently, to ensure

our appellate review is meaningful, Bunnell, 947 F.2d at 346,

we require the ALJ to “specifically identify the testimony

[from a claimant] she or he finds not to be credible and . . .

explain what evidence undermines the testimony.” Holohan

22 TREICHLER V. COMM’R OF SOC. SEC.

v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001). That

means “[g]eneral findings are insufficient.” Lester v. Chater,

81 F.3d 821, 834 (9th Cir. 1995); see Holohan, 246 F.3d at

1208 (concluding “that the ALJ’s credibility determination

was erroneous” because it was based on the ALJ’s

characterization of “the ‘record in general’”).

Here, the ALJ found that Treichler’s “medically

determinable impairments could reasonably be expected to

cause the alleged symptoms,” and did not find that Treichler

was malingering. The ALJ did not, however, “specifically

identify the testimony” he found not credible. Holohan,

246 F.3d at 1208. Rather, he made only the single general

statement that “the claimant’s statements concerning the

intensity, persistence and limiting effects of these symptoms

are not credible to the extent they are inconsistent with the

above residual functional capacity assessment.” ALJs

routinely include this statement in their written findings as an

introduction to the ALJ’s credibility determination. See, e.g.,

Kamann v. Colvin, 721 F.3d 945, 949–51 (8th Cir. 2013);

Bjornson v. Astrue, 671 F.3d 640, 645–47 (7th Cir. 2012).

After making this boilerplate statement, the ALJs typically

identify what parts of the claimant’s testimony were not

credible and why. See, e.g., Moore v. Colvin, 743 F.3d 1118,

1122 (7th Cir. 2014).

But here, the ALJ stopped after this introductory remark.

This was error and falls short of meeting the ALJ’s

responsibility to provide “a discussion of the evidence” and

“the reason or reasons upon which” his adverse determination

is based. 42 U.S.C. § 405(b)(1). An ALJ’s “vague

allegation” that a claimant’s testimony is “not consistent with

the objective medical evidence,” without any “specific

findings in support” of that conclusion is insufficient for our

TREICHLER V. COMM’R OF SOC. SEC. 23

review. Vasquez, 572 F.3d at 592. As our sister circuits have

concluded, “[c]redibility findings must have support in the

record, and hackneyed language seen universally in ALJ

decisions adds nothing.” Shauger v. Astrue, 675 F.3d 690,

696 (7th Cir. 2012); see also Hardman v. Barnhart, 362 F.3d

676, 679 (10th Cir. 2004). The ALJ must identify the

testimony that was not credible, and specify “what evidence

undermines the claimant’s complaints.” Reddick v. Chater,

157 F.3d 715, 722 (9th Cir. 1998).

Nor is the error harmless. Because the ALJ set out his

RFC and summarized the evidence supporting his

determination, the government argues that we can reasonably

infer that the ALJ rejected Treichler’s testimony to the extent

it conflicted with that medical evidence. But we cannot

substitute our conclusions for the ALJ’s, or speculate as to the

grounds for the ALJ’s conclusions. See Bunnell, 947 F.2d at

346. Although the ALJ’s analysis need not be extensive, the

ALJ must provide some reasoning in order for us to

meaningfully determine whether the ALJ’s conclusions were

supported by substantial evidence. See Holohan, 246 F.3d at

1208. No such reasoning is present here. Because “the

agency’s path” cannot “reasonably be discerned,” Alaska

Dep’t of Envtl. Conserv., 540 U.S. at 497, we must reverse

the district court’s decision to the extent it affirmed the ALJ’s

credibility determination.

IV

We now come to Treichler’s contention that we should

exercise our discretion to remand his case for an award of

benefits. In making this argument, Treichler points to his

testimony regarding the severity of his urinary incontinence,

fecal incontinence, and disabling pain, and the vocational

24 TREICHLER V. COMM’R OF SOC. SEC.

expert’s testimony that a person who has such problems

would not be able to maintain employment.

We begin our analysis with our three-step framework to

deduce whether this is one of the rare circumstances where

we may decide not to remand for further proceedings. See

Garrison, 759 F.3d at 1020. At the first step, we conclude,

for the reasons stated above, that “the ALJ has failed to

provide legally sufficient reasons for rejecting . . . claimant

testimony.” Id.

Second, we turn to the question whether further

administrative proceedings would be useful. Id.; Varney II,

859 F.2d at 1401. In evaluating this issue, we consider

whether the record as a whole is free from conflicts,

ambiguities, or gaps, whether all factual issues have been

resolved, and whether the claimant’s entitlement to benefits

is clear under the applicable legal rules. See Moisa, 367 F.3d

at 887.

In this case, there are significant factual conflicts in the

record between Treichler’s testimony and objective medical

evidence. With regard to his incontinence issues, Treichler

testified that he “wet[s]” himself “two or three times a week,”

mostly at night, while on a “bad week during the daytime,” he

could lose control of his bladder “[p]robably three times” in

a week. This testimony conflicts with other evidence in the

record as to daytime urinary incontinence. Dr. Toland,

Treichler’s urologist, and the nurses who treated him for his

bladder impairments uniformly observed that Treichler had

difficulty voiding urine during the day, while he suffered

from incontinence at night. For example, an August 24, 2006

progress note reflects that Treichler “has had difficulty

voiding with occasional leakage of urine especially at

TREICHLER V. COMM’R OF SOC. SEC. 25

nighttime often soaking the bed” leading to a diagnosis of

nocturnal enuresis. Other notes similarly reported that

Treichler claimed that he “gets up multiple times throughout

the night” and “often will wet the bed,” or that Treichler

“feels that he has to strain to empty his bladder, has

significant urinary frequency getting up 5 or more times at

night,” wetting the bed “[a]bout 2–3 times a week.” The

notes consistently report that the incontinence issue occurs at

night, while Treichler claims that he regularly has daytime

problems.

Treichler also testified that he experienced fecal

incontinence where he would “just lose it . . . about once or

twice a month.” The one relevant medical report in the

record on this issue, however, stated that Treichler reported

constipation and “denie[d] any fecal incontinence.” There is

no other evidence of complaints to his doctors or other

medical professionals regarding fecal incontinence.

Finally, Treichler testified that he had debilitating pain

twice a week that resulted in him just laying in bed. Dr.

McNabb, however, noted that Treichler’s pain medication

makes his life “tolerable,” and that he is able to perform the

majority of his activities. At the hearing, Treichler testified

that medication “takes away a lot of it [pain],” while not “all

of it.”

The dissent’s assertion that “the record amply supports

Treichler’s testimony,” Dissent at 34, and therefore a court is

required to remand for an award of benefits, is wrong

factually and legally. The dissent points to single words or

phrases plucked from individual reports in the record to

support its conclusion that Treichler’s pain renders him

disabled. See Dissent at 35. But when read in context, the

26 TREICHLER V. COMM’R OF SOC. SEC.

record indicates only that Treichler required medical

assistance to manage the pain stemming from his injuries; it

does establish that this pain rendered him unemployable.7 In

any event, we are not deciding Treichler’s disability claim de

novo; rather, we are considering whether the district court

7

For instance, the dissent cites Dr. Mullins’s statement in 2004 (just

months after Treichler’s injury) that Treichler “still has considerable

pain,” Dissent at 35, but fails to quote the rest of the sentence, stating that

Treichler “is taking 12 to 18 oxcodone a day to good control.” The

dissent cites Dr. McNabb’s statement from 2009, that Treichler still “has

a significant amount of pain at times,” Dissent at 35, but again skips over

the second half of the sentence, “although for the most part he is able to

do most of his activities” with a lower dosage of pain medications. The

dissent cites Dr. McNabb’s statement in 2006 that the pain “was getting

somewhat constant,” Dissent at 35, but ignores the second half of the

statement “but the pain has been getting somewhat better.” Later in the

same report, Dr. McNabb states that Treichler’s “pain level is 3 out of 10

and usually goes away 3 or 4 hours after he takes his medication,” and that

Treichler was undergoing vocational rehabilitation and was “going to be

doing deskwork, light duty type of activities in the future.” Finally, Dr.

McNabb noted that Treichler intended to decrease his methadone to “10

mg 3 times a day,” and the doctor wanted to “further discuss weaning him

off narcotic medications if we can.” Accordingly, even the reports cited

by the dissent do not establish that Treichler was unable to perform any

sort of work.

The dissent’s other citations are equally unpersuasive. The dissent

cites to a description of Treichler’s pain as “acute,” Dissent at 35, but that

language comes from a report of Treichler’s scrotal testicular pain after an

infection, which was subsequently resolved. The statement by Treichler’s

wife that “some days [Treichler] doesn’t seem like he can move at all,”

Dissent at 35, is not relevant here, since the district court remanded the

case to the ALJ to consider whether there are germane reasons for

disregarding the wife’s testimony, and that ruling is not on appeal here.

The dissent also cites to reports discussing Treichler’s bladder and bowel

problems, Dissent at 35, but all the cited reports state that the bladder

incontinence occurs at night, and the bowel problems do not cause

incontinence.

TREICHLER V. COMM’R OF SOC. SEC. 27

abused its discretion in determining that there are outstanding

issues in the record that should be decided by the agency

under the ordinary remand rule.

In light of the conflicts and ambiguities in the record, the

district court would not abuse its discretion in concluding that

not all essential factual issues have been resolved, or that “the

record is fully developed and it is clear from the record that

the ALJ would be required to award benefits.” Holohan,

246 F.3d at 1210. Rather, the record raises crucial questions

as to the extent of Treichler’s impairment given

inconsistencies between his testimony and the medical

evidence in the record. These are exactly the sort of issues

that should be remanded to the agency for further

proceedings. See Andrews, 53 F.3d at 1039. Where, as in

this case, an ALJ makes a legal error, but the record is

uncertain and ambiguous, the proper approach is to remand

the case to the agency. For example, in Nguyen v. Chater, the

ALJ failed to give specific and legitimate reasons for

discounting the testimony of a claimant’s spouse regarding

the extent of the claimant’s impairment, but there may have

been contrary medical evidence in the record. 100 F.3d at

1467. We remanded the case to the ALJ for further

proceedings without precluding the ALJ “from reopening the

hearing to receive additional evidence should such a course

of action be deemed appropriate.” Id.; see also Byrnes,

60 F.3d at 642 (holding that the ALJ erred in making

inadequate findings to support his conclusion that the

claimant was not credible and remanding “for further findings

evaluating the credibility of [claimant’s] subjective

complaints,” while noting that on remand the ALJ could deny

benefits if he made adequate findings). The same approach

is appropriate here.

28 TREICHLER V. COMM’R OF SOC. SEC.

Treichler argues that because the ALJ erred, we should

credit his testimony as true. Once we have done so, he

argues, there would be no outstanding issues to resolve and

we should remand for benefits. The dissent likewise contends

that a court must first take the claimant’s testimony as true

and then determine if there are any outstanding issues that

require resolution. Dissent at 38. This is an erroneous

reading of our case law, which requires us to assess whether

there are outstanding issues requiring resolution before

considering whether to hold that the claimant’s testimony is

credible as a matter of law. Garrison, 759 F.3d at 1020;

Connett, 340 F.3d at 876. Under the dissent’s approach, a

court would have to disregard any evidence in conflict with

the claimant’s testimony, and remand for benefits even if the

objective medical evidence in the record indicated that the

claimant was not disabled. But an ALJ’s failure to provide

sufficiently specific reasons for rejecting the testimony of a

claimant or other witness does not, without more, require the

reviewing court to credit the claimant’s testimony as true. As

we have explained in the context of testimony regarding

impairments due to excess pain, “[a]n ALJ cannot be required

to believe every allegation of disabling pain, or else disability

benefits would be available for the asking, a result plainly

contrary to 42 U.S.C. § 423(d)(5)(A).” Fair v. Bowen,

885 F.3d 597, 603 (9th Cir. 1989). By the same token, a

reviewing court is not required to credit claimants’

allegations regarding the extent of their impairments as true

merely because the ALJ made a legal error in discrediting

their testimony. “The Disability Insurance and Supplemental

Security Income programs are intended to provide benefits to

people who are unable to work; awarding benefits in cases of

nondisabling pain would expand the class of recipients far

beyond that contemplated by the statute.” Id. Accordingly,

only where “there are no outstanding issues that must be

TREICHLER V. COMM’R OF SOC. SEC. 29

resolved before a determination of disability can be made,”

do we have discretion to credit a claimant’s testimony as true

and remand for benefits, and only then where “it is clear from

the record that the ALJ would be required to find [the

claimant] disabled” were such evidence credited. Moisa,

367 F.3d at 887. While we have recognized the impact that

delays in the award of benefits may have on claimants, such

costs are a byproduct of the agency process, and do not

“obscure the more general rule that the decision of whether to

remand for further proceedings turns upon the likely utility of

such proceedings.” Harman, 211 F.3d at 1179.

Treichler’s reliance on Benecke v. Barnhart and Vasquez

v. Astrue to support his argument is misplaced. In Benecke,

we held that the ALJ erred in ruling that the claimant was not

credible regarding “the extent of her impairments,” 379 F.3d

587, 593 (9th Cir. 2004), where “the record including the

limited vocational expert testimony, clearly establishes that

[the claimant] cannot perform a sedentary job or any other

substantial gainful work that exists in the national economy,”

id. at 595; see also id. (noting that “in the unusual case in

which it is clear from the record that the claimant is unable to

perform gainful employment in the national economy . . .

remand for an immediate award of benefits is appropriate”

(emphasis added)).8 As we have explained, in this case the

8

In reaching this conclusion, Benecke did not expressly analyze the

statements of the non-treating and non-examining physicians who

indicated that the claimant had seriously impaired functioning due to a

psychological disorder (somatization disorder) rather than fibromyalgia.

379 F.3d at 592. Recognizing that the opinions of non-treating and non-

examining physicians do not, by themselves, “constitute substantial

evidence that justifies the rejection of the opinion” of a treating doctor,

Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995), Benecke implicitly held

that the conclusions of the non-treating and non-examining physicians did

30 TREICHLER V. COMM’R OF SOC. SEC.

district court could reasonably determine, based on the

inconsistencies between Treichler’s testimony and the

medical reports, that it is not clear from the record that

Treichler is disabled. Vasquez is even less helpful to

Treichler. In that case, the ALJ erred in failing to make

specific findings in discrediting the claimant’s testimony.

572 F.3d at 592. We confirmed that Varney II allowed a

remand for benefits only in “cases ‘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,’” and held that in Vasquez, there

were “outstanding issues that must be resolved before a

proper disability determination can be made.” Id. at 593

(quoting Varney II, 859 F.2d at 1401). Accordingly, we

remanded for further proceedings, not an award of benefits.

Id. at 594.9

not create a factual issue that required resolution by the agency where the

rheumatologists who treated the claimant (and whose views were entitled

to more weight) unanimously concluded she suffered from fibromyalgia,

see Benecke, 379 F.3d at 594 & n.4 (“Each rheumatologist’s opinion is

given greater weight than those of the other physicians because it is an

‘opinion of a specialist about medical issues related to his or her area of

specialty.’” (citing 20 C.F.R. § 404.1527(d)(5)). By contrast, Treichler’s

testimony is contradicted by information in the reports of his treating

physicians.

9

Vasquez determined that the claimant was credible in light of various

equitable considerations, 572 F.3d at 593–94, but this finding did not

constitute an application of the Varney rule, because Vasquez remanded

the case for a resolution of outstanding administrative issues, while

Varney II remanded for an award of benefits. We decline to apply

Vasquez here, in light of the different factual context and the general rule

that the Commissioner has the authority to make factual findings.

TREICHLER V. COMM’R OF SOC. SEC. 31

Because further administrative proceedings are necessary,

Treichler has failed to satisfy the second step of the Varney

rule. Accordingly, we do not reach the third step of the rule,

which arises where the record is fully developed and free

from conflicts, making it clear that the ALJ would be required

to find the claimant disabled if he credited the claimant’s

testimony as true. Indeed, after a comprehensive review of

the record, we conclude that this case raises “serious doubt as

to whether the claimant is, in fact, disabled within the

meaning of the Social Security Act,” Garrison, 759 F.3d at

1021, and so a remand for further proceedings is warranted in

any event in an exercise of discretion.

Because these circumstances do not justify a departure

from the ordinary remand rule, the district court must

“remand to the agency for additional investigation or

explanation.” Lorion, 470 U.S. at 744.

V

In sum, because the ALJ erred in failing to provide

specific reasons for rejecting Treichler’s testimony regarding

the severity of his symptoms, we must reverse the judgment

of the district court affirming that portion of the ALJ’s

decision. But because the record does not compel a finding

of disability, we remand Treichler’s disability application to

the district court to remand to the agency for further

proceedings.10

AFFIRMED in part, REVERSED in part, and

REMANDED for further proceedings.

10

Each party shall bear its own costs on appeal.

32 TREICHLER V. COMM’R OF SOC. SEC.

TASHIMA, Circuit Judge, concurring in part and dissenting

in part:

I agree with the majority that the ALJ erred in discrediting

Treichler’s medically determinable pain and symptom

testimony based on a boilerplate credibility determination. I

part company, however, with the majority’s remand for

further proceedings. I would, instead, remand for the award

of benefits. I, therefore, dissent from Part IV of the majority

opinion.

I.

Under the credit-as-true rule, a reviewing court may

“credit evidence that was rejected during the administrative

process and remand for an immediate award of benefits if:

(1) the ALJ failed to provide legally sufficient reasons for

rejecting the evidence; (2) there are no outstanding issues that

must be resolved before a determination of disability can be

made; and (3) it is clear from the record that the ALJ would

be required to find the claimant disabled were such evidence

credited.” Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir.

2004). Under our precedent, we must remand for an award of

benefits if these three factors are met, unless the record

discloses that there is “serious doubt” that the claimant is

actually disabled. Garrison v. Colvin, 759 F.3d 995, 1023

(9th Cir. 2014). Here, each of these factors is satisfied and

there is no serious doubt that Treichler is actually disabled.1

1

Treichler worked as a tree trimmer and fell 50 feet from a tree. He

suffered massive injuries, including numerous fractures and internal

injuries.

TREICHLER V. COMM’R OF SOC. SEC. 33

First, the ALJ failed to provide “legally sufficient

reasons” for rejecting Treichler’s pain and symptom

testimony. Id. at 1022. As the majority holds, the ALJ

committed legal error in rejecting Treichler’s testimony based

on boilerplate. Maj. Op. at 22–23.

Second, there are “no outstanding issues that must be

resolved before a determination of disability can be made.”

Garrison, 759 F.3d at 1019 (quoting Varney v. Sec’y of

Health & Human Servs., 859 F.2d 1396, 1401 (9th Cir. 1988)

(internal quotation marks omitted)). We have remanded for

additional proceedings when “critical portions of [a treating

physician’s] testimony . . . were not before the ALJ at all but

were presented only to the Appeals Council,” Harman v.

Apfel, 211 F.3d 1172, 1180 (9th Cir. 2000), or when “no

vocational expert has been called upon to consider all of the

testimony that is relevant to the case,” Bunnell v. Barnhart,

336 F.3d 1112, 1116 (9th Cir. 2003). Such considerations are

absent here, where the vocational expert considered all of the

relevant testimony, and where no critical evidence was

submitted to the Appeals Council. No outstanding issues

must be resolved on remand before a disability determination

can be made.

Third, “it is clear from the record that the ALJ would be

required to find [Treichler] disabled were [his testimony]

credited.” Benecke, 379 F.3d at 593. Treichler testified that

he suffers from urinary incontinence up to three times a week,

fecal incontinence once or twice a month, catheter use up to

four times a day for twenty minutes a time, and incapacitating

pain twice a week. Dispositively, the vocational expert

testified that each of these conditions, independently,

prevents Treichler from performing substantial gainful

activity. The vocational expert also testified that disabling

34 TREICHLER V. COMM’R OF SOC. SEC.

pain one-fourth as severe as Treichler’s would render

Treichler unemployable. Thus, “the vocational expert’s

testimony establishes that taking [Treichler’s] testimony as

true, he was disabled.” Lingenfelter v. Astrue, 504 F.3d 1028,

1041 (9th Cir. 2007).

“[Treichler] satisfies all three conditions of the credit-as-

true rule and . . . a careful review of the record discloses no

reason to seriously doubt that [he] is, in fact, disabled. A

remand for a calculation and award of benefits is therefore

required under our credit-as-true precedents.” Garrison,

759 F.3d at 1023.

II.

The majority, however, concludes that we should not

remand for the award of benefits because some evidence in

the record contradicts Treichler’s testimony. Maj. Op. at 31.

I am unpersuaded.

Application of the credit-as-true rule does not depend on

the absence of contradictory evidence in the record. Instead,

once the credit-as-true rule’s three-part test is satisfied, as it

has been here, we must remand for the award of benefits

unless “the record as a whole creates serious doubt that a

claimant is, in fact, disabled.” Garrison, 759 F.3d at 1021

(emphasis added). The mere existence of some contradictory

evidence is insufficient: only if that evidence is extensive

and compelling does the credit-as-true rule permit us to

remand for further proceedings. Id. Here, the record as a

whole leaves little doubt that Treichler is disabled. On the

contrary, the record amply supports Treichler’s testimony.

Treichler’s description of his symptoms – urinary

incontinence, fecal incontinence, catheter use, and disabling

TREICHLER V. COMM’R OF SOC. SEC. 35

pain – is corroborated by numerous opinions from treating

physicians and from other sources.

Medical records attest to the severity and continuity of

Treichler’s pain, even with medication. Treichler’s treating

physicians describe his pain as “considerable,” “significant,”

“[a]cute,” “chronic,” and “constant.” They diagnose his pain

as ongoing: Treichler “still has,” “continues to have,” and

will have “significant pain and discomfort” “for a very

prolonged period of time.” Medical opinions also confirm

that Treichler’s pain is not controlled well by medication: he

receives “very little pain relief” from his medication, and “is

not very active because [medication] does not take all of his

pain away,” leaving him only “somewhat functional.”

According to other sources, “some days [Treichler] doesn’t

seem like he can move at all.”

Treichler’s bladder incontinence, fecal incontinence, and

catheter use are similarly affirmed by medical evidence in the

record. Treating physicians and nurse practitioners diagnosed

Treichler with “leakage of urine,” “bladder incontinence . . .

2 times a week,” and “bladder problems.” Treating

specialists, physicians, and other sources described Treichler

as having “significant . . . problems with bowel function,” and

prescribed self-catheterization “4 times daily.” The majority

asserts that this evidence is wanting because it appears

alongside other portions of the record that downplay the

extent of Treichler’s disability. Maj. Op. at 25–26 & n.7.

But the mere fact that some evidence raises questions about

the severity of Treichler’s injuries does not cast doubt on the

record as a whole, as required by our precedents to justify a

remand. Cf. Garrison, 759 F.3d at 1021. I remain

36 TREICHLER V. COMM’R OF SOC. SEC.

unconvinced that any of the discrepancies cited by the

majority cast doubt sufficient to justify a remand.2

Although evidence from treating physicians and from

other sources amply supports Treichler’s testimony about his

disabling pain, bladder incontinence, bowel incontinence, and

catheter use, the majority concludes that Treichler’s pain

testimony, if credited, would not require the ALJ to award

him benefits. Maj. Op. at 28. I disagree.

III.

The majority remands for further proceedings to enable

the ALJ to make findings concerning conflicting evidence in

the record. See Maj. Op. at 31. But the fact “that there is

material in the record upon which the ALJ legitimately could

have rejected . . . testimony” does not justify remand for

further proceedings. Harman, 211 F.3d at 1178 (emphasis

2

The majority asserts that our review of Treichler’s disabilities need not

be searching because “we are considering whether the district court

abused its discretion in determining that there are outstanding issues in the

record that should be decided by the agency under the ordinary remand

rule.” Maj. Op. at 26–27. We have indicated in the past, however, that in

the social security context “the distinction [between de novo and abuse of

discretion review] often begins to blur.” Harman, 211 F.3d at 1176.

Moreover, in Harman, after articulating the abuse of discretion standard,

we applied the credit-as-true rule and, in so doing, closely examined the

record to see “whether it was clear from the record that the ALJ would be

required to find the claimant disabled were [the claimant’s] evidence

credited.” Id. at 1178–80 (quoting Smolen v. Chater, 80 F.3d 1273, 1929

(9th Cir. 1996)). The overarching abuse of discretion standard did not

prevent us from giving the plaintiff’s materials “the consideration to which

they are entitled.” Id. at 1180; see also Benecke, 379 F.3d at 593–96.

Accordingly, the abuse of discretion standard should not prevent us from

fully applying the credit-as-true rule to Treichler’s case.

TREICHLER V. COMM’R OF SOC. SEC. 37

added). The credit-as-true rule does not consider “whether

the ALJ might have articulated a justification for rejecting”

claimant testimony. Id. at 1179. When the credit-as-true

rule’s criteria are met, “remand for determination and

payment of benefits is warranted regardless of whether the

ALJ might have articulated a justification for rejecting” a

claimant’s testimony. Id.

The majority attempts to justify its remand for further

proceedings by contending that the second element of the

credit-as-true rule is unmet here. Maj. Op. at 31. The

majority is mistaken. Under the second element of the credit-

as-true rule, we consider whether the “record is fully

developed” before the ALJ. McCartey v. Massanari,

298 F.3d 1072, 1077 (9th Cir. 2002); Moore v. Comm’r of

Soc. Sec. Admin., 278 F.3d 920, 926 (9th Cir. 2002); Smolen,

80 F.3d at 1292. This means we consider whether the “claim

of disability has been developed by an evidentiary hearing

and numerous medical reports.” Vertigan v. Halter, 260 F.3d

1044, 1053 (9th Cir. 2001). We may find the rule’s second

element unmet only when the record is not sufficiently

developed, for example when “critical portions of [a treating

physician’s] testimony . . . were not before the ALJ at all but

were presented only to the Appeals Council,” Harman,

211 F.3d at 1180; when “additional assumptions should have

been incorporated into the ALJ’s hypothetical,” Hill v.

Astrue, 698 F.3d 1153, 1162 (9th Cir. 2012); or when “no

vocational expert has been called upon to consider all of the

testimony that is relevant to the case,” Bunnell, 336 F.3d at

1116. Here, the second element is clearly met. The record

before the ALJ included all the critical evidence, and the

vocational expert was asked to consider all the testimony

relevant to the case. The inquiry under the second element of

the credit-as-true rule should end there.

38 TREICHLER V. COMM’R OF SOC. SEC.

The majority, instead, holds that the second element of

the credit-as-true rule is unmet where the record does not

unquestionably establish that a claimant’s testimony is true.

See Maj. Op. at 28. This is improper. Fundamentally, the

credit-as-true rule asks whether “taking the claimant’s

testimony as true, the ALJ would clearly be required to award

benefits.” Lingenfelter, 504 F.3d at 1041 (emphasis added).

It does not ask, as the majority does, whether the claimant’s

testimony is clearly established as true by the record.

The majority points to Nguyen v. Chater, 100 F.3d 1462

(9th Cir. 1996), as an example of a case where we remanded

to the ALJ for further proceedings after finding legal error.

Maj. Op. at 27. The claimant’s case in Nguyen, however, was

based primarily on the reports of doctors; the claimant’s

testimony by itself was insufficient to establish that he was

disabled. See Nguyen, 100 F.3d at 1464–67. The court thus

made no mention of the credit-as-true rule because it was not

relevant. In this case, by contrast, Treichler’s testimony by

itself would, if credited, entitle him to benefits.

The majority’s dismissal of Benecke is similarly flawed.

According to the majority, the claimant’s analogy to Benecke

is inapposite because Benecke was an “unusual case” where

the record clearly established the defendant was unable to

perform any substantial gainful work existing in the national

economy. Maj. Op. at 29–30. However, much like the case

at hand, non-examining physicians offered testimony in

Benecke suggesting the claimant was not disabled. Benecke,

379 F.3d at 592–93. The Benecke court applied the credit-as-

true rule in spite of this evidence because the full record left

TREICHLER V. COMM’R OF SOC. SEC. 39

no serious doubt the claimant was disabled. See id. at 595.3

We should do the same.

The majority also contravenes the spirit and purpose of

the credit-as-true rule to “ensure that pain testimony [is]

carefully assessed” so “that credible claimants’ testimony is

accepted the first time around.” Varney, 859 F.2d at 1398.

It springs from a recognition of the extreme costs –

“financial, medical, and emotional” – of an ALJ’s failure

carefully to assess a claimant’s testimony in the initial

proceeding. Id. at 1399. Remanding for further proceedings

even when the credit-as-true rule is met, as the majority does,

ignores these values and permits the Commissioner to

administer “an unfair ‘heads we win; tails, let’s play again’

system of disability benefits adjudication.” Benecke, 379 F.3d

at 595.4

3

According to the majority, there was no substantive evidence

contradicting the claimant’s disability claim because the court “implicitly

held that the conclusions of the non-treating and non-examining

physicians did not create a factual issue that required resolution by the

agency.” Maj. Op. at 29–30 n.8. Though we did note in Benecke that the

opinions of non-treating physicians should be given “less weight,” we

never stated that such opinions received no weight. Benecke, 379 F.3d at

592. Contrary to the majority’s assertion, our application of the credit-as-

true rule in Benecke came only after we acknowledged the limited

evidence weighing against the claimant’s disability claim. See id. at

593–94.

4

The credit-as-true rule is aimed at mitigating the terrible costs

claimants must endure after erroneous credibility assessments by

encouraging the ALJ to weigh such testimony carefully. Varney, 859 F.2d

at 1398. The fact that such a scheme may penalize the Commissioner in

litigation is merely a byproduct of its true purpose. The majority’s

suggestion that the rule is principally concerned with judicial efficiency

thus is incorrect. See Maj. Op. at 29. Though in Harman we did articulate

a general concern that remands should occur when further proceedings are

40 TREICHLER V. COMM’R OF SOC. SEC.

“The Commissioner, having lost this appeal, should not

have another opportunity to show that [Treichler] is not

credible any more than [Treichler], had he lost, should have

an opportunity for remand and further proceedings to

establish his credibility.” Moisa v. Barnhart, 367 F.3d 882,

887 (9th Cir. 2004). But the majority gives the

Commissioner precisely that second bite at the apple and

makes a shambles of the credit-as-true rule.

Because I would remand for the calculation and award of

benefits, I respectfully dissent from the majority’s remand for

further proceedings.

likely to be useful, we specifically noted a “limited exception” to that

principle when the credit-as-true rule’s requirements are met. Harman,

211 F.3d at 1179.