Kim Brown-Hunter v. Carolyn W. Colvin

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KIM BROWN-HUNTER, No. 13-15213

Plaintiff-Appellant,

D.C. No.

v. 2:11-cv-02573-

FJM

CAROLYN W. COLVIN,

Commissioner of Social Security, ORDER AND

Defendant-Appellee. AMENDED

OPINION

Appeal from the United States District Court

for the District of Arizona

Frederick J. Martone, Senior District Judge, Presiding

Argued and Submitted

March 13, 2015—San Francisco, California

Filed August 4, 2015

Amended November 3, 2015

Before: J. Clifford Wallace, Milan D. Smith, Jr.,

and Paul J. Watford, Circuit Judges.

Order;

Opinion by Judge Wallace

2 BROWN-HUNTER V. COLVIN

SUMMARY*

Social Security

The panel vacated the district court’s judgment affirming

the Social Security Administrative Law Judge’s denial of a

claimant’s application for Social Security disability benefits,

and remanded with instructions to remand the case to the ALJ

for further proceedings.

When an ALJ determines that a claimant for Social

Security benefits is not malingering and has provided

objective medical evidence of an underlying impairment

which might reasonably produce the pain or other symptoms

she alleged, the ALJ may reject the claimant’s testimony

about the severity of those symptoms only by providing

specific, clear, and convincing reasons for doing so.

The panel held that the ALJ, who found generally that the

claimant’s testimony was not credible, erred by failing to

identify which part of the claimant’s testimony was not

credible and why. The panel held that an ALJ does not

provide the specific, clear, and convincing reasons for

rejecting a claimant’s testimony by simply reciting the

medical evidence in support of his or her residual functional

capacity determination. The panel held that the ALJ must

specify which testimony she finds not credible, and then

provide clear and convincing evidence, supported by

evidence in the record, to support that credibility

determination. The panel noted that the inconsistencies

*

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

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

BROWN-HUNTER V. COLVIN 3

identified independently by the district court cannot provide

the basis upon which to affirm the ALJ’s decision. The panel

held that the ALJ’s error was not harmless because it

prevented the panel from conducting a meaningful review of

the ALJ’s reasoning.

The panel concluded that critical factual issues remained

unresolved, and that further proceedings would be useful.

The panel, accordingly, instructed the district court to remand

to the ALJ for further proceedings rather than for an

immediate award of benefits.

COUNSEL

Eric G. Slepian (argued), Phoenix, Arizona, for Plaintiff-

Appellant.

Jessica Milano (argued) and Matthew M. Linton, Special

Assistant United States Attorneys, and John Jay Lee,

Regional Chief Counsel, Region VIII, Social Security

Administration Office of the General Counsel, Denver,

Colorado; John S. Leonardo, United States Attorney, Michael

Johns, Assistant United States Attorney, Denver, Colorado,

for Defendant-Appellee.

4 BROWN-HUNTER V. COLVIN

ORDER

The court’s opinion filed August 4, 2015, and appearing

at 798 F.3d 749 (9th Cir. 2015), is hereby amended. An

amended opinion is filed herewith.

With this amended opinion, the panel has voted to deny

the petition for panel rehearing. That petition is therefore

DENIED. No further petitions for rehearing or rehearing en

banc may be filed.

OPINION

WALLACE, Senior Circuit Judge:

When an Administrative Law Judge (ALJ) determines

that a claimant for Social Security benefits is not malingering

and has provided objective medical evidence of an underlying

impairment which might reasonably produce the pain or other

symptoms she alleges, the ALJ may reject the claimant’s

testimony about the severity of those symptoms only by

providing specific, clear, and convincing reasons for doing

so. We hold that an ALJ does not provide specific, clear, and

convincing reasons for rejecting a claimant’s testimony by

simply reciting the medical evidence in support of his or her

residual functional capacity determination. To ensure that our

review of the ALJ’s credibility determination is meaningful,

and that the claimant’s testimony is not rejected arbitrarily,

we require the ALJ to specify which testimony she finds not

credible, and then provide clear and convincing reasons,

supported by evidence in the record, to support that

credibility determination.

BROWN-HUNTER V. COLVIN 5

Here, the ALJ found generally that the claimant’s

testimony was not credible, but failed to identify which

testimony she found not credible and why. We conclude,

therefore, that the ALJ committed legal error. This error was

not harmless because it precludes us from conducting a

meaningful review of the ALJ’s reasoning. We therefore

vacate the district court’s judgment affirming the ALJ’s

denial of benefits. Because we conclude that critical factual

issues remain unresolved, and that further proceedings will be

useful, we instruct the district court to remand this case to the

ALJ for further proceedings rather than for an immediate

award of benefits.

I.

Kim Brown-Hunter applied for Social Security disability

benefits and supplemental security income on April 29, 2009.

After the Social Security Administration denied her claims

initially and again on reconsideration, Brown-Hunter timely

requested and was granted a hearing before an ALJ.

A.

At the hearing, Brown-Hunter provided medical evidence

that she suffered from obesity, peripheral neuropathy, lumbar

degenerative disc disease, diabetes mellitus, migraine

headaches, hypothyroidism, hypertension, and asthma.

Brown-Hunter told the ALJ that until 2003 she had worked as

a certified nursing assistant, but had to stop working because

she “could no longer lift the patients or get them out of bed or

in bed.” She testified that she looked for other work until

about 2005, when “it just got to the point where [she]

couldn’t sit up or stand up or walk a distance.”

6 BROWN-HUNTER V. COLVIN

Brown-Hunter next described her then-current functional

limitations. She testified that she could not drive long

distances, that she could lift only about ten pounds, and that

she was able to sit only for about an hour and to stand only

for about forty-five minutes. She described her daytime

routine as “sit[ting] in the garage for a couple hours,” which

was often interrupted by the need to lie down “like four or

five times for about thirty minutes” because her “feet and . . .

legs [would] swell up when [she was] on them too much.” In

the evenings, she stated she would talk, visit, and watch

television with her son and daughter, and that if she needed

something from the store, her daughter would get it for her.

When the ALJ asked about her ability to do housework,

Brown-Hunter stated that she was able to “pick up some, but

[was] not able to sweep anymore or mop or vacuum or bend

down for the dishwasher.”

Brown-Hunter told the ALJ that her functional limitations

were caused in part by severe back and leg pain, coupled with

swelling in her lower extremities. When the ALJ asked if

anything alleviated this pain and swelling, Brown-Hunter

replied that elevating her feet, as prescribed by her doctors,

helped with the leg and feet pain, but that “[w]ith my back I

have to l[ie] down.” Brown-Hunter stated that to control the

pain and swelling effectively, she needed to elevate her feet

twice a week for thirty minutes to an hour, and to lie down

three to four times a day for thirty minutes to an hour. Brown-

Hunter also provided evidence that she was taking roughly

twenty medications, including strong pain medications, such

as oxycodone.

After Brown-Hunter concluded her testimony, the ALJ

turned to the vocational expert. The ALJ asked the vocational

expert a series of hypothetical questions to identify the

BROWN-HUNTER V. COLVIN 7

occupations that existed in significant numbers in the national

economy that an individual could perform, assuming such an

individual had Brown-Hunter’s same age, education, past

work experience, and functional limitations.

The ALJ began by asking the vocational expert which

occupations would be available to such individual “limited to

a range of light work as . . . defined under the regulations,”

but with the ability to do “no more than occasional pushing

and pulling with the upper and lower extremities.” The

vocational expert identified a handful of possible jobs,

including “light janitorial or light office cleaning,” and an

unskilled, light “[a]ssembly position.” When the ALJ asked

how his testimony would change if that hypothetical was

modified “to add . . . that the individual would be off task 15

to 20 percent of the work day,” the vocational expert replied

that such individual “would not be able to sustain the work.”

The ALJ then allowed Brown-Hunter’s counsel to

question the vocational expert. As relevant here, counsel

asked the vocational expert to assume an individual with

lower extremity swelling who needed to elevate her feet thirty

minutes to one hour twice a week:

Q: If we were to assume those limitations,

would such an individual be able to perform

Claimant’s past work?

A: No.

Q: Would there be any other job they could

sustain?

A: Not likely.

8 BROWN-HUNTER V. COLVIN

...

Q: And if an individual needed to rest or lie

down . . . two or three times a day for thirty

minutes at a time, . . . and it was unscheduled,

would that preclude such an individual from

performing Claimant’s past work?

A: Yes.

Q: Would it allow for any other jobs?

A: No.

Shortly after this testimony the hearing concluded.

B.

Several weeks later, the ALJ issued a written decision

denying Brown-Hunter’s claims. Following the Social

Security Act’s five-step procedure for determining disability,

see 20 C.F.R. § 416.920(a)(4), the ALJ concluded at step one

that Brown-Hunter had not engaged in substantial gainful

activity since the date of the alleged onset. At step two, the

ALJ concluded that Brown-Hunter suffered from the “severe”

impairments of “obesity, peripheral neuropathy, lumbar

degenerative disc disease (DDD), diabetes mellitus (DM),

and migraine headaches.” However, at step three, the ALJ

concluded that those impairments did not—either in isolation

or in combination—meet or equal a “listed” impairment. See

20 C.F.R. § 404, Subpart P, App’x 1. This conclusion

required the ALJ to then determine Brown-Hunter’s Residual

Functional Capacity (RFC) in preparation for step four.

BROWN-HUNTER V. COLVIN 9

The ALJ began her discussion of the RFC with her

conclusion that Brown-Hunter had the RFC “to perform light

work . . . except she can perform no more than occasional

pushing and pulling with the upper and lower extremities.”

The ALJ then acknowledged her duty to “evaluate the

intensity, persistence, and limiting effects of the claimant’s

symptoms to determine the extent to which they limit the

claimant’s functioning,” and, where appropriate, to “make a

finding on the credibility of the statements based on a

consideration of the entire case record.” She went on to

paraphrase Brown-Hunter’s testimony regarding the

chronology of her back pain, followed by a summary of the

treatments and prescriptions for that pain, the symptoms

pertaining to Brown-Hunter’s diabetic peripheral neuropathy,

as well as Brown-Hunter’s height, weight, smoking habits,

and ability “to drive short distances, sit for one hour and stand

for 45 minutes.”

Following that summary, the ALJ concluded that although

Brown-Hunter’s “medically determinable impairments could

reasonably be expected to cause some of the alleged

symptoms,” her “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.”

Finally, after devoting the next eight paragraphs to

summarizing the medical evidence in the record, the ALJ

stated:

After careful consideration of the entire

record, including the medical evidence and

the testimony at the hearing, I find the

functional limitations resulting from the

10 BROWN-HUNTER V. COLVIN

claimant’s impairments were less serious than

she has alleged. . . . [While] the medical

evidence supports a finding that the

claimant’s impairments . . . impos[e] some

restrictions, [they] did not prevent her from

engaging in all work related activities.

Consequently, the ALJ proceeded to step four and

concluded that Brown-Hunter’s limited RFC precluded her

from performing any past relevant work. But at step five, the

ALJ determined that, considering Brown-Hunter’s RFC, age,

education, and work experience, she was able to do other

work that existed in significant numbers in the national

economy. Citing the vocational expert’s testimony that a

hypothetical individual with the “same age, education, and

past relevant work experience” as Brown-Hunter could

perform occupations such as “light janitorial” and

“assembly,” the ALJ concluded that Brown Hunter was not

disabled under the Social Security Act.

C.

The ALJ’s decision became final when the Social

Security Appeals Council denied review. Brown-Hunter then

appealed from the ALJ’s decision to the district court. She

argued that the ALJ erred by “fail[ing] to provide clear and

convincing reasons for rejecting her symptom testimony.”

The district court rejected her argument, holding that “the

ALJ gave clear and convincing reasons to support [her]

determination that [Brown-Hunter’s] ‘impairments were less

serious than she has alleged.’” The district court pieced

together medical evidence identified by the ALJ that it found

inconsistent with “an allegation of excess pain,” and stated

therefore that the ALJ “identified several inconsistencies

BROWN-HUNTER V. COLVIN 11

between [Brown-Hunter’s] testimony and the record,” and

“gave clear and convincing reasons to support [her]

determinations that [Brown-Hunter’s] impairments were less

serious than she has alleged.’” The district court affirmed the

ALJ’s decision, and Brown-Hunter timely filed this appeal,

over which we have jurisdiction pursuant to 28 U.S.C.

§ 1291.

II.

We review de novo a district court’s order affirming an

ALJ’s denial of Social Security benefits. Hill v. Astrue,

698 F.3d 1153, 1158 (9th Cir. 2012). On de novo review, we

must bear in mind that a federal court’s review of Social

Security determinations is quite limited. “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.’”

Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090,

1098 (9th Cir. 2014), quoting Consolo v. Fed. Mar. Comm’n,

383 U.S. 607, 621 (1966). To ensure that we adhere to this

principle, we follow three important rules in our analysis of

the ALJ’s decision.

The first is that “we leave it to the ALJ to determine

credibility, resolve conflicts in the testimony, and resolve

ambiguities in the record.” Treichler, 775 F.3d at 1098. The

second is that we will “disturb the Commissioner’s decision

to deny benefits ‘only if it is not supported by substantial

evidence or is based on legal error.’” Id., quoting Andrews v.

Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). The third is that

“[e]ven when the ALJ commits legal error, we uphold the

12 BROWN-HUNTER V. COLVIN

decision where that error is harmless,” meaning that “it is

inconsequential to the ultimate nondisability determination,”

or that, despite the legal error, “the agency’s path may

reasonably be discerned, even if the agency explains its

decision with less than ideal clarity.” 775 F.3d at 1099

(internal quotation marks and citations omitted).

That said, “our precedents have been cautious about when

harmless error should be found.” Marsh v. Colvin, ___ F.3d

___, No. 12-17014, 2015 WL 4153858, *2 (9th Cir. June 18,

2015). Ever mindful of our duty not to substitute our own

discretion for that of the agency, we have emphasized that

“the decision on disability rests with the ALJ and the

Commissioner of the Social Security Administration in the

first instance, not with a district court.” Id. at *3. Thus,

although we will not fault the agency merely for explaining

its decision with “less than ideal clarity,” Treichler, 775 F.3d

at 1099 (citation and internal quotation marks omitted), we

still demand that the agency set forth the reasoning behind its

decisions in a way that allows for meaningful review. A clear

statement of the agency’s reasoning is necessary because we

can affirm the agency’s decision to deny benefits only on the

grounds invoked by the agency. Stout v. Comm’r, Soc. Sec.

Admin., 454 F.3d 1050, 1054 (9th Cir. 2006).

A reviewing court may not make independent findings

based on the evidence before the ALJ to conclude that the

ALJ’s error was harmless. Id.; see also Marsh, 2015 WL

4153858, *2 (a district court may not find harmless error by

“affirm[ing] the agency on a ground not invoked by the

ALJ”). Rather, “[w]e are constrained to review the reasons

the ALJ asserts.” Connett v. Barnhart, 340 F.3d 871, 874 (9th

Cir. 2003). If the ALJ fails to specify his or her reasons for

finding claimant testimony not credible, a reviewing court

BROWN-HUNTER V. COLVIN 13

will be unable to review those reasons meaningfully without

improperly “substitut[ing] our conclusions for the ALJ’s, or

speculat[ing] as to the grounds for the ALJ’s conclusions.”

Treichler, 775 F.3d at 1103. Because we cannot engage in

such substitution or speculation, such error will usually not be

harmless.

III.

Where, as here, an ALJ concludes that a claimant is not

malingering, and that she has provided objective medical

evidence of an underlying impairment which might

reasonably produce the pain or other symptoms alleged, the

ALJ may “reject the claimant’s testimony about the severity

of her symptoms only by offering specific, clear and

convincing reasons for doing so.” Lingenfelter v. Astrue,

504 F.3d 1028, 1036 (9th Cir. 2007) (citation and internal

quotation marks omitted). The Commissioner disputes that

standard of review. Relying primarily on Bunnell v. Sullivan,

947 F.2d 341 (9th Cir. 1991), the Commissioner argues that

although the court reviews the ALJ’s credibility finding for

adequate specificity, “clear and convincing” reasons are not

required. We recently rejected this argument in Burrell v.

Colvin, 775 F.3d 1133, 1136–37 (9th Cir. 2014) (holding that

the “clear and convincing” requirement actually predated

Bunnell and was not “excised” by it). Burrell therefore

forecloses the Commissioner’s argument.

A finding that a claimant’s testimony is not credible

“must be sufficiently specific to allow a reviewing court to

conclude the adjudicator rejected the claimant’s testimony on

permissible grounds and did not arbitrarily discredit a

claimant’s testimony regarding pain.” Bunnell, 947 F.2d at

345–46 (citation and internal quotation marks omitted).

14 BROWN-HUNTER V. COLVIN

“General findings are insufficient; rather, the ALJ must

identify what testimony is not credible and what evidence

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

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

quotation marks omitted). See also Holohan v. Massanari,

246 F.3d 1195, 1208 (9th Cir. 2001) (“the ALJ must

specifically identify the testimony she or he finds not to be

credible and must explain what evidence undermines the

testimony” (emphasis added)). The governing Social Security

rulings, which “are binding on all components of the Social

Security Administration, . . . and are to be relied upon as

precedents in adjudicating cases,” Orn v. Astrue, 495 F.3d

625, 636 (9th Cir. 2007), quoting 67 Fed. Reg. at 57860, are

clear on this point:

it is not sufficient for the adjudicator to make

a single, conclusory statement that ‘the

individual’s allegations have been considered’

or that ‘the allegations are [not] credible.’ . . .

The determination . . . must contain specific

reasons for the finding on credibility,

supported by the evidence in the case record,

and must be sufficiently specific to make clear

to . . . any subsequent reviewers the weight

the adjudicator gave to the individual’s

statements and the reasons for that weight.

Social Security Ruling 96-7P, 1996 WL 374186 at *2 (July 2,

1996) (emphasis added).

Following these principles in Treichler, for example, we

held that the ALJ erred by making only a “single general

statement that ‘the claimant’s statements concerning the

intensity, persistence and limiting effects of these symptoms

BROWN-HUNTER V. COLVIN 15

are not credible to the extent they are inconsistent with the

above residual functional capacity assessment,’” without

identifying “sufficiently specific reasons” for rejecting the

testimony, supported by evidence in the case record. 775 F.3d

at 1102–03. The ALJ here made the identical conclusory

statement and likewise failed to identify specifically which of

Brown-Hunter’s statements she found not credible and why.

Instead, the ALJ stated only that she found, based on

unspecified claimant testimony and a summary of medical

evidence, that “the functional limitations from the claimant’s

impairments were less serious than she has alleged.”

We disagree with the district court that the ALJ

“identified several inconsistencies between [Brown-Hunter’s]

testimony and the record,” and therefore “gave clear and

convincing reasons to support” her non-credibility

determination. Our review of the ALJ’s written decision

reveals that she did not specifically identify any such

inconsistencies; she simply stated her non-credibility

conclusion and then summarized the medical evidence

supporting her RFC determination. This is not the sort of

explanation or the kind of “specific reasons” we must have in

order to review the ALJ’s decision meaningfully, so that we

may ensure that the claimant’s testimony was not arbitrarily

discredited. Although the inconsistencies identified by the

district court could be reasonable inferences drawn from the

ALJ’s summary of the evidence, the credibility determination

is exclusively the ALJ’s to make, and ours only to review. As

we have long held, “[W]e are constrained to review the

reasons the ALJ asserts.” Connett v. Barnhart, 340 F.3d 871,

874 (9th Cir. 2003) (emphasis added). Thus, the

inconsistencies identified independently by the district court

cannot provide the basis upon which we can affirm the ALJ’s

decision.

16 BROWN-HUNTER V. COLVIN

Indeed, “[o]ur decisions make clear that we may not take

a general finding—an unspecified conflict between

Claimant’s testimony . . . and her reports to doctors—and

comb the administrative record to find specific conflicts.”

Burrell, 775 F.3d at 1138. Because the ALJ failed to identify

the testimony she found not credible, she did not link that

testimony to the particular parts of the record supporting her

non-credibility determination. This was legal error. See id. at

1139 (holding that the ALJ committed legal error because he

“never connected the medical record to Claimant’s

testimony” nor made “a specific finding linking a lack of

medical records to Claimant’s testimony about the intensity

of her . . . pain” (emphasis added)). Even if the district court’s

analysis was sound, it could not overcome the error of the

ALJ. That is, the error could not be corrected by the district

court’s statement of links between claimant testimony and

certain medical evidence.

Nor was that error harmless. An error is harmless only if

it is “inconsequential to the ultimate nondisibility

determination,” Molina v. Astrue, 674 F.3d 1104, 1115 (9th

Cir. 2012) (citation and internal quotation marks omitted), or

if despite the legal error, “the agency’s path may reasonably

be discerned,” Treichler, 775 F.3d at 1099 (citation and

internal quotation marks omitted). But here, we cannot

discern the agency’s path because the ALJ made only a

general credibility finding without providing any reviewable

reasons why she found Brown-Hunter’s testimony to be not

credible. See id. at 1103. Although the ALJ summarized a

significant portion of the administrative record in support of

her RFC determination, providing a summary of medical

evidence in support of a residual functional capacity finding

is not the same as providing clear and convincing reasons for

finding the claimant’s symptom testimony not credible. We

BROWN-HUNTER V. COLVIN 17

reject the Commissioner’s argument, also rejected in

Treichler, that because the ALJ “set out his RFC and

summarized the evidence supporting his determination” we

can infer “that the ALJ rejected [petitioner’s] testimony to the

extent it conflicted with that medical evidence.” Id. We

cannot review whether the ALJ provided specific, clear, and

convincing reasons for rejecting Brown-Hunter’s pain

testimony where, as here, the ALJ never identified which

testimony she found not credible, and never explained which

evidence contradicted that testimony. Burrell, 775 F.3d at

1138. This “falls short of meeting the ALJ’s responsibility to

provide . . . ‘the reason or reasons upon which’ [her] adverse

determination is based.” Treichler, 775 F.3d at 1103, quoting

42 U.S.C. § 405(b)(1).

In sum, “we cannot substitute our conclusions for the

ALJ’s, or speculate as to the grounds for the ALJ’s

conclusions. 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.” 775 F.3d at 1103

(internal citation omitted). The ALJ provided no such

reasoning here. “Because ‘the agency’s path’ cannot

‘reasonably be discerned,’ Alaska Dep’t of Envtl. Conserv. [v.

EPA], 540 U.S. [461,] 497 [(2004)], we must reverse the

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

credibility determination.” 775 F.3d at 1099.

IV.

Brown-Hunter argues that in light of the ALJ’s error, we

must credit her testimony as true and remand to the district

court with instructions to remand to the agency for an

immediate award of benefits. A remand for an immediate

18 BROWN-HUNTER V. COLVIN

award of benefits is appropriate, however, only in “rare

circumstances.” Id. Before ordering that extreme remedy, we

must first satisfy ourselves that three requirements have been

met.

First, we must conclude that “the ALJ has failed to

provide legally sufficient reasons for rejecting evidence,

whether claimant testimony or medical opinion.” Garrison v.

Colvin, 759 F.3d 995, 1020 (9th Cir. 2014).

Second, we must conclude that “the record has been fully

developed and further administrative proceedings would

serve no useful purpose.” Id. This requirement will not be

satisfied if “the record raises crucial questions as to the extent

of [a claimant’s] impairment given inconsistencies between

his testimony and the medical evidence in the record,”

because “[t]hese are exactly the sort of issues that should be

remanded to the agency for further proceedings.” Treichler,

775 F.3d at 1105. Importantly, we are “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.” Id. This is because “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.” Id. at

1106. The touchstone for an award of benefits is the existence

of a disability, not the agency’s legal error. To condition an

award of benefits only on the existence of legal error by the

ALJ would in many cases make “‘disability benefits . . .

available for the asking, a result plainly contrary to 42 U.S.C.

§ 423(d)(5)(A).’” Id., quoting Fair v. Bowen, 885 F.2d 597,

603 (9th Cir. 1989).

BROWN-HUNTER V. COLVIN 19

Third, we must conclude that “if the improperly

discredited evidence were credited as true, the ALJ would be

required to find the claimant disabled on remand.” Garrison,

759 F.3d at 1021.

Finally, even if all three requirements are met, we retain

“flexibility” in determining the appropriate remedy. Id. We

may remand on an open record for further proceedings “when

the record as a whole creates serious doubt as to whether the

claimant is, in fact, disabled within the meaning of the Social

Security Act.” Id.

Here, although we conclude that the ALJ committed legal

error by failing to specify which testimony she found not

credible and why, we will not remand for an immediate

award of benefits because we are not satisfied that “further

administrative proceedings would serve no useful purpose.”

Id. at 1020. Indeed, the record raises crucial questions about

the extent to which Brown-Hunter’s pain and accompanying

symptoms render her disabled. Brown-Hunter’s testimony

that her back and leg pain are relieved only by lying down

four to five times a day for thirty minutes each, and by

elevating her legs twice a week for thirty minutes to an hour

each, appears dispositive to the ultimate disability

determination in light of the vocational expert’s hearing

testimony. Indeed, when asked hypothetically if a person who

was required to be “off task approximately 15 to 20 percent

of the workday” would be able to sustain the specified light

work, the vocational expert testified that he or she “would

not.” When asked whether “an individual [who] needed to

rest or lie down . . . two or three times a day for thirty minutes

at a time” on an unpredictable schedule would be able to

sustain “any other jobs,” the vocational expert testified, “No.”

And even when the ALJ reduced the hypothetical frequency

20 BROWN-HUNTER V. COLVIN

of feet-elevation to only twice a week, the vocational expert

again confirmed that such an individual “wouldn’t be able to

sustain [light work]. No.”

But Brown-Hunter’s need to lie down and to elevate her

feet with such frequency is contingent on the assumption that

her pain is in fact debilitating and that no other alternative

treatment besides lying down adequately alleviates that pain.

However, “the record raises crucial questions” on these issues

“given [the] inconsistencies between [her] testimony and the

medical evidence in the record.” Treichler, 775 F.3d at 1105.

For example, Dr. Massrour’s June 2010 assessment appears

to undermine Brown-Hunter’s allegation that she had zero

residual functional capacity due to debilitating lower back

pain. Dr. Massrour found that her pain averaged a 5 on a 10

point scale, that she “denied progressive neurological deficits,

focal weakness, [and] dense numbness,” and that she was

“independent with [her activities of daily living].” The record

also suggests that her pain was adequately controlled with

medication. For example, the records of her monthly visits to

the Phoenix Pain Management Center indicate that the pain

medications she was taking provided “adequate pain control”

and that her “[f]unctionability on [t]reatment” was improving

with treatment, as evidenced by numbers of 6 to 8 on a 10-

point scale, with higher numbers indicating improvement.

Another pain management report on May 8, 2009, states that

Brown-Hunter reported “adequate” pain control, and that she

was “able to function well.”

Although medical reports of adequate pain control on

medication do not foreclose the possibility that Brown-Hunter

still needs to lie down as often and as unpredictably as she

alleged, they do create a significant factual conflict in the

record that should be resolved through further proceedings on

BROWN-HUNTER V. COLVIN 21

an open record before a proper disability determination can

be made by the ALJ in the first instance. See Treichler,

775 F.3d at 1106–07; Burrell, 775 F.3d at 1141–42. “Where

there is conflicting evidence, and not all essential factual

issues have been resolved, a remand for an award of benefits

is inappropriate.” Treichler, 775 F.3d at 1101. We therefore

vacate the judgment of the district court and remand with

instructions to remand to the agency for further proceedings

on an open record.

VACATED AND REMANDED.