Karen Lambert v. Andrew Saul

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KAREN LYNETTE LAMBERT, No. 19-17102

Plaintiff-Appellant,

D.C. No.

v. 2:18-cv-02122-

CKD

ANDREW M. SAUL, Commissioner of

Social Security,

Defendant-Appellee. OPINION

Appeal from the United States District Court

for the Eastern District of California

Carolyn K. Delaney, Magistrate Judge, Presiding

Argued and Submitted August 12, 2020

San Francisco, California

Filed November 17, 2020

Before: Susan P. Graber and Daniel A. Bress, Circuit

Judges, and Robert T. Dawson, * District Judge.

Opinion by Judge Bress

*

The Honorable Robert T. Dawson, United States District Judge for

the Western District of Arkansas, sitting by designation.

2 LAMBERT V. SAUL

SUMMARY **

Social Security

The panel vacated the district court’s judgment affirming

the denial of claimant’s application for disability benefits

under the Social Security Act, and remanded with

instructions to remand to the administrative law judge

(“ALJ”) for further proceedings.

A Social Security ALJ found claimant disabled

beginning June 1, 2005. The Commissioner of the Social

Security Administration (“SSA”) conducted periodic

continuing disability reviews, and determined that

claimant’s disability ended January 1, 2015.

After this court issued Bellamy v. Secretary of Health

and Human Services, 755 F.2d 1380 (9th Cir. 1985) (holding

that a claimant’s prior disability determination entitled

claimant to a presumption of continuing disability), the SSA

interpreted then-recent amendments to the Social Security

Act as foreclosing any presumption of continuing disability.

The panel held that it must defer to the SSA’s intervening

interpretation of the statute, which was a reasonable one.

The panel held, therefore, that there was no presumption of

continuing disability under the Social Security Act. The

panel concluded that the ALJ did not err in evaluating,

without any such presumption, the SSA’s determination that

the claimant was no longer disabled.

**

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

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

LAMBERT V. SAUL 3

The panel held that the ALJ erred in failing to articulate

sufficient reasons for refusing to credit claimant’s testimony

about the severity of her medical condition. Here, the ALJ

did not identify the specific testimony that he discredited,

and did not explain the evidence undermining it. The panel

held that the ALJ was required to do more than was done

here, which consisted of offering non-specific conclusions

that claimant’s testimony was inconsistent with her medical

treatment. Finally, the panel held that the ALJ’s error was

not harmless.

COUNSEL

John V. Johnson (argued), Chico, California, for Plaintiff-

Appellant.

Shea L. Bond (argued) and Allison J. Cheung, Special

Assistant United States Attorneys; Deborah Lee Stachel,

Regional Chief Counsel; McGregor W. Scott, United States

Attorney; Social Security Administration, San Francisco,

California; for Defendant-Appellee.

OPINION

BRESS, Circuit Judge:

We address in this case a question that has caused

confusion in our Social Security disability benefits cases:

whether a claimant’s prior disability determination entitles

her to a presumption of continuing disability. We

recognized such a presumption in Patti v. Schweiker,

669 F.2d 582 (9th Cir. 1982), and applied it most relevantly

in Bellamy v. Secretary of Health & Human Services,

4 LAMBERT V. SAUL

755 F.2d 1380 (9th Cir. 1985). After Bellamy, however, the

Social Security Administration (SSA) interpreted then-

recent amendments to the Social Security Act as foreclosing

any presumption of continuing disability.

We conclude that we must defer to the SSA’s intervening

interpretation of the statute, which is a reasonable one. See

Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs.,

545 U.S. 967 (2005); Chevron U.S.A. v. Natural Res. Def.

Council, 467 U.S. 837 (1984). We therefore hold that there

is no presumption of continuing disability under the Social

Security Act. The Administrative Law Judge (ALJ) thus did

not err in evaluating, without any such presumption, the

SSA’s determination that claimant Karen Lambert is no

longer disabled.

The ALJ did err, however, in failing to articulate

sufficient reasons for refusing to credit Lambert’s testimony

about the severity of her medical condition. Under our cases,

the ALJ must identify the specific testimony that he

discredited and explain the evidence undermining it. Here,

the ALJ did neither. We therefore vacate the district court’s

judgment and remand with instructions to return this case to

the ALJ for proceedings consistent with this opinion.

I

Karen Lambert, now age 54, was employed as a deli

clerk and overnight retail stocker until 2005, when she

developed pain related to rheumatoid arthritis. The pain

prevented her from working. Lambert applied for Disability

Insurance Benefits, 42 U.S.C. § 401, et seq., and

Supplemental Social Security Income, 42 U.S.C. § 1382, et

seq., and an ALJ found her disabled beginning June 1, 2005.

LAMBERT V. SAUL 5

The Commissioner of the SSA must conduct periodic

continuing disability reviews of persons who receive

disability benefits. See 42 U.S.C. § 421(i); 20 C.F.R.

§ 404.1590. As part of such a continuing review, the

Commissioner, on January 6, 2015, determined that

Lambert’s disability had ended January 1, 2015. Lambert

sought reconsideration before a disability hearing officer,

who denied reconsideration. Lambert then requested a

hearing before an ALJ. See 20 C.F.R. § 404.929.

At her hearing, Lambert testified that she continues to

suffer from rheumatoid arthritis, in addition to a thyroid

condition, vision problems, anxiety, and depression. She

also has a bone spur in her foot, pain in her Achilles tendon,

and five bulging discs in her neck and back, which make it

difficult for her to walk and stand. Despite the many

medications she takes, Lambert stated that her pain is

debilitating. She asserted that she spends most of her time

in her bedroom “because it’s unbearable to move.”

Lambert provided examples about how her medical

conditions affect her daily life. She cannot lift most items or

complete certain household chores. She sometimes relies on

her daughter to help her with personal care tasks, including

bathing and dressing. She requires crutches to get to the

bathroom but has trouble using them. She drives only short

distances because her knees become stiff and painful after

long periods of sitting. Because of these limitations,

Lambert testified she would not be able to perform any job

that required standing for extended periods, frequent

fingering and handling of objects, or working in

“overwhelm[ing]” situations.

Lambert also submitted medical evidence from her

treating physicians. Several of her doctors found that her

rheumatoid arthritis was stable and that her joints showed

6 LAMBERT V. SAUL

reasonable ranges of motion and minimal inflammation. But

doctors also noted that Lambert reported continued pain and

stiffness and displayed difficulty grasping objects. Lambert

saw two podiatrists for her heel pain, and a later x-ray

revealed mild thickening of the soft tissue in that area. At

the recommendation of one podiatrist, Lambert underwent a

surgical debridement of her Achilles tendon to remove a

bone spur. Lambert also saw a pain management specialist

who administered epidural steroid injections in her back,

which were moderately successful in managing her disc-

related pain.

Finally, the ALJ received reports from several State

agency physicians on behalf of the SSA. These consultants

offered opinions that differed from Lambert’s self-

assessment. The consultants opined that Lambert was

capable of working, including work that was somewhat

strenuous in nature. Dr. Sarupinder Bhangoo, who

examined Lambert in October 2014, reported that Lambert

“move[d] around well” and “d[id] not seem to be in pain.”

He concluded that Lambert could walk up to six hours, sit up

to eight hours, and carry up to fifty pounds. Two other

doctors reviewed Lambert’s file and agreed with Dr.

Bhangoo’s conclusions, though they did not actually

examine Lambert.

The ALJ issued his decision on August 7, 2017, without

applying a presumption of continuing disability. The ALJ

found that Lambert’s current impairments consisted of

rheumatoid arthritis, bilateral calcaneal spurs, right Achilles

tendinopathy, and degenerative disc disease of the cervical

spine and lumbar spine. The ALJ concluded that Lambert

was not able to perform her prior work. But notwithstanding

Lambert’s impairments, the ALJ determined that Lambert

could perform modified “light work,” which includes lifting

LAMBERT V. SAUL 7

up to twenty pounds, a “good deal of walking and standing,”

and “pushing and pulling of arm or leg controls.” See

20 C.F.R. § 404.1567(b).

The ALJ noted that, in reaching this conclusion, he gave

the SSA’s medical consultants “little weight.” Dr. Bhangoo

“did not have the benefit of reviewing the other medical

reports contained in the current record,” and his opinion was

“not consistent with the record in its entirety.” The ALJ also

gave “little weight” to the opinions of the two other

consultants. These doctors did not personally examine

Lambert, and their opinions were also “not consistent with

the record as a whole.”

Although the ALJ found the SSA’s medical experts

largely unpersuasive, he declined to credit Lambert’s

testimony either. According to the ALJ:

After considering the evidence of record, I

find that the claimant’s current medically

determinable impairment could reasonably

be expected to produce the alleged

symptoms; however, the claimant’s

statements concerning the intensity,

persistence and limiting effects of these

symptoms are not entirely consistent with the

objective medical and other evidence for the

reasons explained in this decision.

Accordingly, these statements have been

found to affect the claimant’s ability to work

only to the extent they can reasonably be

accepted as consistent with the objective

medical and other evidence.

The ALJ determined that Lambert’s testimony was “less

than fully consistent with the evidence” for four reasons.

8 LAMBERT V. SAUL

First, Lambert had “not generally received the type of

medical treatment one would expect for a totally disabled

individual.” Second, the “record reflect[ed] significant gaps

in [her] history of treatment and relatively infrequent trips to

the doctor for the allegedly disabling symptoms.” Third,

Lambert’s “use of medications does not suggest the presence

of impairments which is more limiting than found in this

decision.” And finally, “medications have been relatively

effective in controlling [her] symptoms.”

Lambert requested review of the ALJ’s decision, but the

SSA’s Appeals Council denied her request. See 20 C.F.R.

§ 404.967. Lambert then filed an action in federal court

challenging the denial of benefits. 42 U.S.C. §§ 405(g),

1383(c). The district court granted summary judgment for

the Commissioner. This appeal followed. We “review the

district court’s order affirming the ALJ’s denial of social

security benefits de novo and will disturb the denial of

benefits only if the decision contains legal error or is not

supported by substantial evidence.” Tommasetti v. Astrue,

533 F.3d 1035, 1038 (9th Cir. 2008) (citation and quotations

omitted).

II

We first address the purely legal question whether the

ALJ erred in not applying a presumption of continuing

disability because of Lambert’s earlier, 2005 disability

determination. We hold that the ALJ did not err. The SSA

has interpreted later amendments to the Social Security Act

to preclude such a presumption, and that reasonable

interpretation warrants our deference.

LAMBERT V. SAUL 9

A

When a claimant was previously found to be disabled

and the SSA is conducting a continuing disability review, is

the claimant entitled to any presumption that her disability

still persists? Our cases point in different directions.

In Patti v. Schweiker, 669 F.2d 582 (9th Cir. 1982), a

claimant received disability benefits but the SSA determined

that her disability had resolved. We used the occasion to

announce a presumption of continuing disability, holding

that “a prior ruling of disability can give rise to a

presumption that the disability still exists.” Id. at 586. We

explained that we were “unable to discern any reason why

the familiar principle that a condition, once proved to exist,

is presumed to continue to exist, should not be applied when

disability benefits are at stake.” Id. at 587; see also Murray

v. Heckler, 722 F.2d 499, 500 (9th Cir. 1983) (explaining the

operation of the presumption).

Patti did not purport to locate its presumption of

continuing disability in any text in the Social Security Act.

Instead, for support Patti cited only the Fifth Circuit’s

decision in Rivas v. Weinberger, 475 F.2d 255 (5th Cir.

1973). See Patti, 669 F.2d at 586–87. Rivas, in turn, devised

a presumption based on an offhand statement in Hall v.

Celebrezze, 314 F.2d 686, 688 (6th Cir. 1963). See Rivas,

475 F.2d at 258. Neither Rivas nor Hall conducted any

statutory analysis. Nevertheless, various circuits around this

time adopted a presumption of continuing disability in some

form or another. See Rush v. Sec’y of Health & Human

Servs., 738 F.2d 909, 914–15 (8th Cir. 1984); Dotson v.

Schweiker, 719 F.2d 80, 82 (4th Cir. 1983); Kuzmin v.

Schweiker, 714 F.2d 1233, 1237 (3d Cir. 1983); Simpson v.

Schweiker, 691 F.2d 966, 969 (11th Cir. 1982); Rivas,

475 F.2d at 258.

10 LAMBERT V. SAUL

In 1984, Congress passed the Social Security Disability

Benefits Reform Act. Pub. L. No. 98-460, 98 Stat. 1794

(1984) (“Reform Act”). The Reform Act “made

comprehensive revisions in the disability program,” Bowen

v. City of New York, 476 U.S. 467, 486 n.14 (1986), and

reflected a substantial overhaul of the standards and

procedures for terminating disability benefits. See Huie v.

Bowen, 788 F.2d 698, 700 (11th Cir. 1986) (“The Act listed

new standards for determining when disability benefits paid

pursuant to various titles of the Social Security Act are to be

terminated.”).

As relevant here, the Reform Act amended the Social

Security Act to include the following key passage regarding

the standard for terminating benefits:

Any determination made under this section

shall be made on the basis of the weight of

the evidence and on a neutral basis with

regard to the individual’s condition, without

any initial inference as to the presence or

absence of disability being drawn from the

fact that the individual has previously been

determined to be disabled.

42 U.S.C. §§ 423(f), 1382c(a)(4) (1984). 1 Section 423(f)

lays out the circumstances in which the SSA can conclude

that disability benefits may be terminated, such as findings

of medical improvement, new techniques or evaluations that

make an impairment less disabling, or a prior disability

determination that was erroneous. See also id.

§ 1382c(a)(4). The Reform Act took effect on October 9,

1

A later amendment relocated the provision in 42 U.S.C.

§ 1382c(a)(4) to 42 U.S.C. § 1382c(a).

LAMBERT V. SAUL 11

1984, but Congress mandated that any determination

relating to medical improvement pending judicial review as

of September 19, 1984 was to be returned to the Secretary of

Health and Human Services for reconsideration under the

new standard. Reform Act, 98 Stat. 1794 § 2(d)(2)(C).

Six months later, we decided Bellamy v. Secretary of

Health & Human Services, 755 F.2d 1380 (9th Cir. 1985).

Like Patti, Bellamy was an appeal by a Social Security

claimant whose disability benefits had been terminated. The

claimant’s challenge seemingly should have been decided

under the amended version of the statute, but we did not

mention the 1984 Reform Act or analyze the new statutory

provision. Because Bellamy was pending judicial review as

of September 19, 1984, it appears that the case should have

also been returned to the Secretary of Health and Human

Services for consideration under the new legal standard.

Reform Act, 98 Stat. 1794 § 2(d)(2)(C). It is not apparent

whether either party advised the court about the 1984

revisions to the Social Security Act (the case was submitted

several days before the new amendments took effect).

Instead, Bellamy applied the “presumption of continuing

disability” and held that the Secretary had “failed to offer

evidence sufficient to overcome the presumption.” 755 F.2d

at 1381.

Following Bellamy, we took note of the continuing

disability presumption on a few occasions. But it appears

that we never applied the presumption again in a published

opinion. Instead, and although they did not concern the

issue, our later cases made unelaborated statements on

whether the presumption survived the 1984 Reform Act.

In Warren v. Bowen, 804 F.2d 1120 (9th Cir. 1986) (per

curiam), amended on denial of reh’g, 817 F.2d 63 (9th Cir.

1987), we considered a claimant whose benefits were

12 LAMBERT V. SAUL

terminated for a non-medical reason (her income changed).

Id. at 1121. We rejected the claimant’s argument, grounded

in Patti, that the claimant was entitled to a presumption of

continuing disability, explaining that non-medical

terminations are subject to a specific regulation that

prescribes a disability presumption of only one year. Id. We

then stated: “Appellant’s argument that we should use Patti

to second-guess the Secretary on this point was undercut by

Congress’s decision in 1984 to eliminate the presumption

that Patti created.” Id. (emphasis added). See also Warren,

817 F.2d at 64 (indicating that this was the wording used in

the initial Warren opinion).

We discussed the presumption again in W.C. v. Bowen,

807 F.2d 1502 (9th Cir. 1987), a class action concerning the

Secretary’s enactment of a review program for termination

decisions. Id. at 1503–04. In a footnote, W.C. cited Warren

for the proposition that the 1984 Reform Act “overrule[d]

the presumption of continuing disability under Patti v.

Schweiker, 669 F.2d 582, 586–87 (9th Cir. 1982).” Id.

at 1506 n.8.

Several months later, however, we amended Warren by

deleting the portion of the sentence that we relied on in W.C.

As noted, Warren originally said Congress in 1984

endeavored to “eliminate the presumption that Patti

created.” 804 F.2d at 1121 (emphasis added). In the

amended opinion, we replaced “eliminate” with “codify,” so

that the affected sentence now reads: “Appellant’s argument

that we should use Patti to second-guess the Secretary on

this point was undercut by Congress’s decision in 1984 to

codify the presumption that Patti created.” 804 F.2d at 1121

(emphasis added). No explanation was given for this

change. And no changes were made to W.C., which had

relied on the earlier version of Warren.

LAMBERT V. SAUL 13

But the next sentences in Warren clarified what we

meant by “codify”: in light of the 1984 amendments, we

explained, “[w]e must now look to the statute and the

regulations for guidance,” and those “support the Secretary’s

position” that the claimant was not entitled to a presumption

of disability but was required to show disability. Id. In other

words, Warren directed that the space in which the

presumption had previously operated was now the subject of

statute and regulation, so that courts should follow “the

statute and the regulations” and not any judge-made

presumption. 2 Id. That is why the 1984 amendments

“undercut” the claimant’s position in Warren, which sought

a judge-made presumption in the face of regulations that

applied in that area. Id.; see also Stubbs-Danielson v. Astrue,

539 F.3d 1169, 1172 (9th Cir. 2008) (relying on Warren to

reject claimant’s argument that the ALJ erred in failing to

apply a presumption of disability).

Most recently, we rejected a pro-claimant presumption

in Parra v. Astrue, 481 F.3d 742 (9th Cir. 2007), holding

that, under 1996 amendments to the Social Security Act,

before the claimant is considered disabled, he bears the

burden of proving that substance abuse is not a material

contributing factor to his disability. Id. at 744–45. We

explained that the presumption in Bellamy applied only

when the claimant had already been found disabled. Id.

at 748. But Parra did not validate the presumption of

continuing disability, nor did it address the suggestions in

Warren and W.C. as to whether the presumption remained

2

As the Fourth Circuit has explained, the 1984 amendments could

be said to “partially codify[]” preexisting case law insofar as that in the

case of termination decisions based on medical improvement, there must

be “substantial evidence of medical improvement.” Rhoten v. Bowen,

854 F.2d 667, 669 (4th Cir. 1988).

14 LAMBERT V. SAUL

good law. In fact, neither Warren, W.C., nor Parra had

occasion to address that issue, because each case involved

different issues. Bellamy thus remains our last word on the

presumption that Patti fashioned.

B

There was, however, a material change in the law post-

Bellamy that we have never considered: the SSA’s

authoritative interpretation of the 1984 Reform Act as

precluding any presumption of continuing disability.

The Reform Act required that the SSA promulgate

implementing regulations through notice and comment

rulemaking procedures. 42 U.S.C. § 421(k). The SSA

published its proposed rules on April 30, 1985, with a public

comment period through June 14, 1985. See Old-Age,

Survivors, and Disability Insurance and Supplemental

Security Income for the Aged, Blind, and Disabled;

Determining Disability and Blindness, 50 Fed. Reg. 18432-

01, 1985 WL 105099, at *18432 (Apr. 30, 1985) (to be

codified at 20 C.F.R. pts. 404, 416). Because the Act

contemplated significant changes in this area of law, the SSA

received “literally hundreds” of public submissions, which

included data, views, and other comments from a wide

variety of interested persons, organizations, and public

agencies. See Supplemental Security Income; Disability and

Blindness Determinations, 50 Fed. Reg. 50118-01, 1985 WL

125771, at *50121 (Dec. 6, 1985) (to be codified at

20 C.F.R. pts. 404, 416). The SSA “carefully consider[ed]”

these comments both in making “extensive changes” to the

proposed rules and in “reply[ing] to the issues raised in the

comments [it] received.” Id. at *50118.

The SSA issued its final regulations on December 6,

1985, more than ten months after our decision in Bellamy.

LAMBERT V. SAUL 15

Id. On the issue that is our focus here, the SSA’s regulations

essentially rehashed the language of the 1984 Reform Act,

providing that termination decisions should be made “on a

neutral basis—without any initial inference being drawn

from the fact that an individual had previously been

determined to be disabled.” Id. at *50119; see also 20 C.F.R.

§§ 404.1579(b)(4), 404.1594(b)(6).

The SSA also published responses to public comments,

which were issued in the preamble to the final regulations.

50 Fed. Reg. 50118-01, 1985 WL 125771, *50121

(“Comments Received Following Publication of the Notice

of Proposed Rulemaking”). The SSA noted that its

responses to the comments were aimed at “expand[ing] and

clarif[ying]” its regulations in order to “make the meaning

of the rules more precise,” and thereby contribute to “the

uniformity and equity” with which they would be applied.

Id.

One such response to public comments is particularly

relevant here. The SSA noted that “[s]everal commenters

stated that the proposed rules did not consider a beneficiary’s

rights to continued benefits once on the rolls. They felt a

presumption of disability should be applied until otherwise

overturned.” Id. at *50124. The SSA responded

unequivocally that “[t]he expressed intent of the Congress as

stated in the report of the Conference Committee is that the

continuing disability decision should be made on a neutral

basis. No inference should be drawn that disability

continues because disability was once found to exist or that

disability ends because the issue is being reviewed. The

regulatory language reflects the language used in this

report.” Id. The “report of the Conference Committee” to

which the SSA referred was a House Conference Report,

which stated in relevant part:

16 LAMBERT V. SAUL

The conferees intend that determinations of

continuing eligibility should be made on a

basis which is as nearly neutral as possible.

The Secretary should reach conclusions on

the basis of the weight of the evidence, as

applied to the statutory standards specified in

this amendment, and without any

preconception or presumption as to whether

the individual is or is not disabled.

H.R. Conf. Rep. 98-1039, 26, 1984 WL 37437, at *26 (Sept.

19, 1984). In other words, through its response to public

comments, the SSA determined that a presumption of

continuing disability was unavailable under the new statute.

We have never considered the legal effect of the SSA’s

interpretation of the 1984 Reform Act. As a three-judge

panel, we are bound by circuit precedent except “where the

reasoning or theory of our prior circuit authority is clearly

irreconcilable with the reasoning or theory of intervening

higher authority.” Miller v. Gammie, 335 F.3d 889, 893 (9th

Cir. 2003) (en banc). This venerable principle commands

our utmost respect and is central to the rule of law in

appellate decision-making.

There are, however, limited circumstances in which we

are permitted—and, indeed, required—to depart from it.

Those circumstances include the “intervening higher

authority,” id., of an administrative agency’s authoritative

and reasonable interpretation of a statute. See, e.g., Campos-

Hernandez v. Sessions, 889 F.3d 564, 568–69 (9th Cir. 2018)

(deferring to an agency’s later interpretation of a statute

when the earlier judicial decision did not hold that the

agency’s interpretation was unambiguously foreclosed).

Whether such an intervening agency interpretation can

LAMBERT V. SAUL 17

overcome our prior interpretation of a statute depends, in

turn, on whether we regarded the statute as unambiguously

compelling our interpretation.

The Supreme Court’s decision in Brand X is the guiding

precedent. There, the Court held that “[a] court’s prior

judicial construction of a statute trumps an agency

construction otherwise entitled to Chevron deference only if

the prior court decision holds that its construction follows

from the unambiguous terms of the statute and thus leaves

no room for agency discretion.” 545 U.S. at 982.

On various occasions, we have relied on the principle of

Brand X to recognize that an agency’s intervening

interpretation of a statute commanded deference in the face

of a contrary circuit precedent. See Betansos v. Barr,

928 F.3d 1133, 1136 (9th Cir. 2019); Campos-Hernandez,

889 F.3d at 568–69; Ctr. for Biological Diversity v. Zinke,

900 F.3d 1053, 1063–64 (9th Cir. 2018); Garfias-Rodriguez

v. Holder, 702 F.3d 504, 516 (9th Cir. 2012) (en banc);

Gonzales v. DHS, 508 F.3d 1227, 1237–39 (9th Cir. 2007);

Metrophones Telecomm., Inc. v. Glob. Crossing

Telecomms., Inc., 423 F.3d 1056, 1061 (9th Cir. 2005), aff’d,

550 U.S. 45 (2007); Skranak v. Castenada, 425 F.3d 1213,

1220 (9th Cir. 2005).

Brand X applies here because neither Bellamy nor any of

our past precedents held that a presumption of continuing

disability “follows from the unambiguous terms of the

statute.” Brand X, 545 U.S. at 982. In fact, and as we noted

above, our prior cases never purported to locate the

presumption of continuing disability in any statutory text.

Because “[w]e did not mention” the Reform Act in Bellamy,

we “thus could not have offered an interpretation that

‘follows from [its] unambiguous terms.’” Metrophones,

423 F.3d at 1065 (citing Brand X, 545 U.S. at 982). The

18 LAMBERT V. SAUL

question then becomes whether the SSA’s interpretation of

the Reform Act, as set forth in its response to public

comments, is entitled to Chevron deference. We conclude

that Chevron deference applies here, so that the SSA’s

authoritative interpretation of the Social Security Act

displaces our prior precedents on the issue of a presumption

of continuing disability.

The SSA is charged with administering the Social

Security Act, a complex statute. 42 U.S.C. §§ 405, 421, 423.

The Supreme Court has explained that “[t]he statute’s

complexity, the vast number of claims that it engenders, and

the consequent need for agency expertise and administrative

experience lead us to read the statute as delegating to the

[SSA] considerable authority to fill in, through

interpretation, matters of detail related to its administration.”

Barnhart v. Walton, 535 U.S. 212, 225 (2002). “We give

deference to an agency’s interpretation of statutes . . . it is

charged with administering.” Am. Fed’n of Gov’t Emps. v.

FLRA, 204 F.3d 1272, 1274–75 (9th Cir. 2000). Here, there

is no dispute that the SSA’s interpretation of the 1984

amendments brought to bear its “longstanding, technical

expertise” in administering the Social Security Act. Larson

v. Saul, 967 F.3d 914, 926 (9th Cir. 2020); see also Astrue v.

Capato ex rel. B.N.C., 566 U.S. 541, 558 (2012) (according

Chevron deference to SSA’s interpretation of Social

Security Act); Barnhart v. Thomas, 540 U.S. 20, 26 (2003)

(same).

The relevant agency action at issue here—a response to

a public comment provided in the course of a substantial

notice and comment rulemaking and included in the

preamble to the SSA’s regulations—is the type of agency

action that can merit Chevron deference. In this case,

Congress has clearly “delegated authority to the agency

LAMBERT V. SAUL 19

generally to make rules carrying the force of law,” and the

SSA provided formal responses to public comments “in the

exercise of that authority” and using “formalized

procedures” in a large rulemaking. Sierra Club v. Trump,

929 F.3d 670, 692 (9th Cir. 2019) (quotations omitted). The

Supreme Court and our court have applied Chevron

deference to agency interpretations made through such

processes and in this form. See Hillsborough Cnty. v.

Automated Med. Labs., Inc., 471 U.S. 707, 714–15 (1985)

(citing Chevron and explaining that “[t]he FDA’s statement

[responding to public comment] is dispositive on the

question of [Congress and the FDA’s] implicit intent to pre-

empt”); Pauley v. BethEnergy Mines, Inc., 501 U.S. 680,

698–99 (1991) (citing agency’s responses to comments as

“warrant[ing] deference from this Court” under Chevron);

see also Safer Chemicals, Healthy Families v. U.S. E.P.A.,

943 F.3d 397, 422 n.17 (9th Cir. 2019) (evaluating

interpretation in regulatory preamble under Chevron). Here,

because the SSA’s interpretation “represents the agency’s

considered judgment after notice and comment, industry

input and interagency consultation,” United States v. United

Healthcare Ins. Co., 848 F.3d 1161, 1177 n.9 (9th Cir.

2016), Chevron deference is available. 3

Applying Chevron’s “familiar two-step analysis,”

Betansos, 928 F.3d at 1139, we conclude that the SSA’s

interpretation of the 1984 Reform Act requires deference.

The text of the Reform Act is strongly suggestive of the

SSA’s interpretation, but Congress did not specifically

3

Because the SSA’s responses to public comments are eligible for

Chevron deference, we have no occasion to determine whether the SSA’s

regulations themselves, which merely parrot the statutory text in the

1984 Reform Act, are entitled to Chevron deference. See N. Cal. River

Watch v. Wilcox, 633 F.3d 766, 780 (9th Cir. 2011).

20 LAMBERT V. SAUL

reference any “presumption.” Some courts concluded that

the Reform Act did not “clearly overturn” the presumption

of continuing disability because “[a]n inference is not the

same as a presumption.” Medina v. Colvin, 2015 WL

5448498, at *10 (N.D. Cal. Aug. 21, 2015); see also

Palacios v. Astrue, 2012 WL 601874, at *3 (C.D. Cal. Feb.

23, 2012). And the public comments that prompted the

SSA’s authoritative interpretation of the 1984 Reform Act

likewise arose from evident uncertainty as to whether any

presumption of continuing disability should be included in

the implementing regulations. 50 Fed. Reg. 50118-01, 1985

WL 125771, at *50124. Under all these circumstances, and

although the statutory wording strongly supports the SSA’s

interpretation, it may be that Congress has not “directly

spoken” to the issue. Betansos, 928 F.3d at 1139.

Nevertheless, there is no doubt the SSA’s interpretation

is a reasonable one, requiring our deference. See Brand X,

545 U.S. at 982; Gonzales, 508 F.3d at 1241. The Reform

Act’s wording—that a disability determination must be

made “on a neutral basis with regard to the individual’s

condition, without any initial inference as to the presence or

absence of disability being drawn from the fact that the

individual has previously been determined to be disabled,”

42 U.S.C. §§ 423(f), 1382c(a)(4)—easily permits the SSA’s

interpretation that a presumption of continuing disability is

no longer allowed or justified. As we explained in Warren,

“[w]e must now look to the statute and the regulations” in

this area of law. 804 F.2d at 1121.

Our holding aligns with those from other circuits that

have confronted the issue directly, all of which have held

that there is no presumption of continuing disability after the

1984 Reform Act. See Cutlip v. Sec’y of Health & Human

Servs., 25 F.3d 284, 286 n.1 (6th Cir. 1994) (per curiam);

LAMBERT V. SAUL 21

Wilkerson v. Sec’y of Health & Human Servs., 996 F.2d 1220

n.4 (7th Cir. 1993) (unpublished); Rhoten v. Bowen,

854 F.2d 667, 669 (4th Cir. 1988). 4

III

Although the ALJ correctly performed his review

without applying a continuing disability presumption, the

ALJ did err in failing to provide sufficient reasons for

rejecting Lambert’s testimony.

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.’” Treichler v. Comm’r of Soc. Sec.

Admin., 775 F.3d 1090, 1098 (9th Cir. 2014) (quoting

Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)).

We therefore “leave it to the ALJ to determine credibility,

resolve conflicts in the testimony, and resolve ambiguities in

the record.” Id. But the ALJ must provide sufficient

reasoning that allows us to perform our own review, because

“the ‘grounds upon which an administrative order must be

judged are those upon which the record discloses that its

4

The Third and Fifth Circuits appear to apply some form of a

presumption, though they have not directly addressed the 1984 Reform

Act. See Chrupcala v. Heckler, 829 F.2d 1269, 1274 n.7 (3d Cir. 1987);

Loza v. Apfel, 219 F.3d 378, 395–96 (5th Cir. 2000). The Eighth and

Eleventh Circuits have recognized that the Reform Act is in tension with

a presumption of continuing disability but have yet to resolve the issue.

See Polaski v. Heckler, 751 F.2d 943, 946 (8th Cir. 1984), cert. granted,

judgment vacated sub nom. Bowen v. Polaski, 476 U.S. 1167 (1986)

(original opinion recognizing that the continuing disability presumption

“no longer stands,” but eliminating this discussion in replacement

opinion); Tomaszewski v. Colvin, 649 F. App’x 705, 705 n.2 (11th Cir.

2016) (per curiam) (“[T]he Court need not decide whether Congress

overruled the presumption of continuing disability for benefit

continuation cases when it enacted 42 U.S.C. § 423(f).”).

22 LAMBERT V. SAUL

action was based.’” Id. at 1102 (quoting SEC v. Chenery

Corp., 318 U.S. 80, 87 (1943)).

Under our well-established case law, and where, as here,

the 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.” Brown-Hunter v.

Colvin, 806 F.3d 487, 488–89 (9th Cir. 2015); see also

Treichler, 775 F.3d at 1102. This requires the ALJ to

“specifically identify the testimony [from a claimant] she or

he finds not to be credible and . . . explain what evidence

undermines that testimony.” Treichler, 775 F.3d at 1102

(quoting Holohan v. Massanari, 246 F.3d 1195, 1208 (9th

Cir. 2001)); see also Brown-Hunter, 806 F.3d at 493.

The ALJ’s decision does not meet the requirements set

forth in our cases and does not permit meaningful review.

The ALJ noted generically that “the claimant’s statements

concerning the intensity, persistence and limiting effects of

[her] symptoms are not entirely consistent with the objective

medical and other evidence for the reasons explained in this

decision.” But this “boilerplate statement” by way of

“introductory remark,” which is “routinely include[d]” in

ALJ decisions denying benefits, did not “identify what parts

of the claimant’s testimony were not credible and why.”

Treichler, 775 F.3d at 1103.

As noted above, the ALJ also provided four high-level

reasons as to why Lambert’s allegations were “less than fully

consistent with the evidence.” But this brief discussion was

likewise insufficient. “We cannot review whether the ALJ

provided specific, clear, and convincing reasons for rejecting

LAMBERT V. SAUL 23

[Lambert’s] pain testimony where, as here, the ALJ never

identified which testimony she found not credible, and never

explained which evidence contradicted that testimony.”

Brown-Hunter, 806 F.3d at 494. Our cases do not require

ALJs to perform a line-by-line exegesis of the claimant’s

testimony, nor do they require ALJs to draft dissertations

when denying benefits. See Treichler, 775 F.3d at 1103

(“[T]he ALJ’s analysis need not be extensive.”). But our

precedents plainly required the ALJ to do more than was

done here, which consisted of offering non-specific

conclusions that Lambert’s testimony was inconsistent with

her medical treatment. See Burrell v. Colvin, 775 F.3d 1133,

1138 (9th Cir. 2014) (explaining that we may not “take a

general finding—an unspecified conflict between

[c]laimant’s testimony . . . and her reports to doctors—and

comb the administrative record to find specific conflicts”);

see also, e.g., Brown-Hunter, 806 F.3d at 493–94; Vasquez

v. Astrue, 572 F.3d 586, 592 (9th Cir. 2009). Although the

ALJ did provide a relatively detailed overview of Lambert’s

medical history, “providing a summary of medical evidence

. . . is not the same as providing clear and convincing

reasons for finding the claimant’s symptom testimony not

credible.” Brown-Hunter, 806 F.3d at 494. 5

The district court attempted to fill in the ALJ’s

reasoning, citing portions of the record suggesting that

Lambert’s subjective pain complaints were not credible. For

example, the district court cited evidence about how

Lambert was able to “perform daily activities including

5

The Commissioner argues that the “clear and convincing reasons”

standard is too high but acknowledges that our cases clearly set forth that

standard. Nor does the Commissioner suggest an alternative standard.

Regardless, in this case, given the limited nature of the ALJ’s

explanations, the result would be the same under a more lenient standard.

24 LAMBERT V. SAUL

shopping, performing household chores, managing money,

reading, personal care, and operating a motor vehicle,” and

compared this to specific aspects of the medical evidence.

The district court’s efforts to shore up the ALJ’s decision,

while understandable, are unavailing. “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 “[w]e are constrained to review the

reasons the ALJ asserts.” Brown-Hunter, 806 F.3d at 494

(quotations and emphasis omitted).

Nor was the ALJ’s error harmless. An error is harmless

only if it is “inconsequential to the ultimate nondisability

determination.” Id. (quotations omitted). Because the ALJ

did not provide enough “reasoning in order for us to

meaningfully determine whether the ALJ’s conclusions

were supported by substantial evidence,” we cannot treat the

error as harmless. Treichler, 775 F.3d at 1103; see also

Brown-Hunter, 806 F.3d at 494–95. Treating the error as

harmless would also be problematic on this record. The ALJ

agreed that Lambert was at least impaired to the point that

she could not perform her past work. And Lambert’s

testimony held even greater potential after the ALJ rejected

as “not consistent with the record” the opinions of several

medical experts who believed that Lambert was capable of

more strenuous work.

* * *

We vacate the judgment of the district court with

instructions to remand to the ALJ for proceedings consistent

with this opinion. We have no occasion to reach Lambert’s

other assignments of error, as the record may change on

LAMBERT V. SAUL 25

remand. We express no opinion as to whether Lambert is

entitled to disability benefits.

VACATED AND REMANDED.