FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ADRIAN BURRELL,

Plaintiff-Appellant,

v.

CAROLYN W. COLVIN,

Commissioner of Social Security,

Defendant-Appellee.

No. 12-16673

D.C. No.

2:11-cv-00749-

SRB

OPINION

Appeal from the United States District Court

for the District of Arizona

Susan R. Bolton, District Judge, Presiding

Argued June 11, 2014

Resubmitted December 19, 2014

San Francisco, California

Filed December 31, 2014

Before: Mary M. Schroeder, Susan P. Graber, and Jay S.

Bybee, Circuit Judges.

Opinion by Judge Graber;

Dissent by Judge Schroeder
2 BURRELL V. COLVIN

SUMMARY*

Social Security

The panel reversed the district court’s decision affirming

the Social Security Commissioner’s denial of Adrian

Burrell’s application for disability insurance benefits pursuant

to the Social Security Act, and remanded the case for further

proceedings.

The panel held that there was not substantial evidence to

support the administrative law judge’s (“ALJ”) rejection of

Burrell’s testimony, or the ALJ’s rejection of the medical

assessment by Burrell’s treating physician. The panel also

held that because it had “serious doubt” as to whether Burrell

was, in fact, disabled pursuant to Garrison v. Colvin,

759 F.3d 995, 1021 (9th Cir. 2014), the district court shall

remand the case to the ALJ for further proceedings, and the

ALJ shall not be required to credit-as-true any evidence.

Judge Schroeder dissented. Judge Schroeder agreed with

the majority that substantial evidence supported neither the

ALJ’s discrediting of Burrell’s testimony nor his rejection of

the treating physician’s medical assessment, but she would

remand for an award of benefits. Judge Schroeder would

hold that the three prerequisites of Garrison are met, would

credit-as-true the discredited evidence, and would not find

that there were serious doubts as to whether Burrell was

disabled within the meaning of the Act.

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

been prepared by court staff for the convenience of the reader.
BURRELL V. COLVIN 3

COUNSEL

Eric G. Slepian (argued), Slepian Law Office, Phoenix,

Arizona, for Plaintiff-Appellant.

Sarah Van Arsdale Berry (argued), Special Assistant United

States Attorney, Social Security Administration, General

Counsel’s Office, Denver, Colorado; Michael A. Johns,

Assistant United States Attorney, Phoenix, Arizona, for

Defendant-Appellee.

OPINION

GRABER, Circuit Judge:

Claimant Adrian Burrell applied for social security

disability benefits primarilybecause of debilitating headaches

resulting from neck and back conditions. An administrative

law judge (“ALJ”) found her not disabled, the Appeals

Council denied review, and the district court affirmed the

denial of benefits. We conclude that substantial evidence

supports neither the ALJ’s rejection of Claimant’s testimony

nor his rejection of the medical assessment by Claimant’s

treating physician, Dr. William Riley. Accordingly, we

reverse the district court’s decision. But, because we have

“serious doubt” as to whether Claimant is, in fact, disabled,

Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014), the

district court shall remand the case to the ALJ for further

proceedings on an open record; that is, on remand, we do not

require the ALJ to credit as true Claimant’s testimony, Dr.

Riley’s assessment, or any other evidence.
4 BURRELL V. COLVIN

FACTUAL AND PROCEDURAL HISTORY

Claimant filed an application for benefits, alleging a

disability onset date of December 18, 2007. For years,

Claimant has suffered pain and headaches resulting from

various neck and back conditions, including a tumor near the

cervical spine, disc herniation, degenerative disc conditions,

and a broad-based disc bulge. Medical providers tracked

degenerative disc changes from the early1990s through 2009,

when she underwent back surgery following a seizure. 

Claimant long had suffered from mild tingling in her left

hand. After surgery, she experienced great difficulty gripping

and grasping items with her left hand.

At the hearing before the ALJ, Claimant testified that she

experiences an average of one to two debilitating migraine

headaches per week. When they occur, the headaches require

her to lie down in a dark room for the remainder of the day. 

Claimant testified that, because of neck and back pain, she is

able to stand, walk, and sit for limited durations only. She

experiences pain when lifting heavy objects and has trouble

sleeping.

The ALJ issued a written decision concluding that

Claimant is not disabled for purposes of the Social Security

Act. The ALJ concluded that Claimant has “severe”

impairments of “chronic neck and low back pain . . . ;

impaired grip in the left hand; and chronic headaches.” But

she has the residual functional capacity to perform “medium

exertion” with additional limitations that she avoid exposure

to workplace hazards and not operate an automobile. In

reaching that conclusion, the ALJfound Claimant’stestimony

not credible to the extent that it conflicted with the residual

functional capacity, and he rejected the contrary conclusions
BURRELL V. COLVIN 5

of Claimant’s primary care doctor, Dr. Riley. Finally, the

ALJ concluded that Claimant was not disabled because she

can perform her past relevant work as a receptionist and a

manicurist.

Claimant sought review by the Appeals Council. As part

of that review, she submitted additional medical evidence. 

The Appeals Council denied review. Claimant filed this

action, and the district court affirmed the denial of benefits in

a written order. Claimant timely appeals.

STANDARDS OF REVIEW

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

denial of social security benefits. Hill v. Astrue, 698 F.3d

1153, 1158 (9th Cir. 2012).

When, as here, “the Appeals Council considers new

evidence in deciding whether to review a decision of the ALJ,

that evidence becomes part of the administrative record,

which the district court [and this court] must consider when

reviewing the Commissioner[ of Social Security]’s final

decision for substantial evidence.” Brewes v. Comm’r of Soc.

Sec. Admin., 682 F.3d 1157, 1163 (9th Cir. 2012).

Where, as here, Claimant has presented evidence of an

underlying impairment and the government does not argue

that there is evidence of malingering,

1 we review the ALJ’s

1 As discussed below, in Part A-3, one report in the record suggests that

Claimant may have been motivated by secondary gain, that is, an

incidental benefit of an illness. But the government has not argued that

this isolated report equals evidence of malingering for purposes of our

standard of review.
6 BURRELL V. COLVIN

rejection of her testimony for “specific, clear and convincing

reasons.” Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir.

2012). The government disputes that standard of review. 

Relying primarily on Bunnell v. Sullivan, 947 F.2d 341 (9th

Cir. 1991) (en banc), the government argues that we review

the ALJ’s decision only for specific reasons and that “clear

and convincing” reasons are not required. We disagree.

In Bunnell, we resolved a longstanding conflict in the

cases about whether a claimant must produce objective

medical evidence to demonstrate the extent of his or her pain. 

Id. at 342. As part of our analysis, we concluded that the

ALJ’s reasons for rejecting a claimant’s testimony must be

“specific.” Id. at 345. It is true that the Bunnell court did not

mention “clear and convincing reasons.” But that standard

predated the decision in Bunnell, e.g., Swenson v. Sullivan,

876 F.2d 683, 687 (9th Cir. 1989); Gallant v. Heckler,

753 F.2d 1450, 1455 (9th Cir. 1984), and there is no

indication that Bunnell intended to overrule that precedent. 

Indeed, the cases following Bunnell read it as supplementing

the “clear and convincing” standard with the requirement that

the reasons also must be “specific.” E.g., Johnson v. Shalala,

60 F.3d 1428, 1433 (9th Cir. 1995). Our more recent cases

have combined the two standards into the now-familiar

phrase that an ALJ must provide specific, clear, and

convincing reasons. Molina, 674 F.3d at 1112. There is no

conflict in the caselaw, and we reject the government’s

argument that Bunnell excised the “clear and convincing”

requirement. We therefore review the ALJ’s discrediting of

Claimant’s testimony for specific, clear, and convincing

reasons.

Finally, because other doctors’ opinions contradicted the

opinion of Dr. Riley, we review the ALJ’s rejection of Dr.
BURRELL V. COLVIN 7

Riley’s opinion for “specific and legitimate reasons that are

supported by substantial evidence.” Bayliss v. Barnhart,

427 F.3d 1211, 1216 (9th Cir. 2005).

DISCUSSION

Claimant challenges the ALJ’s adverse credibility

determination and his rejection of Dr. Riley’s reports.2 The

parties also dispute the appropriate remedy, in the event that

we conclude that the ALJ erred.

A. Claimant’s Credibility

After stating the residual functional capacity, the ALJ

wrote:

After careful consideration of the evidence,

the undersigned finds that the claimant’s

medically determinable impairments could

reasonably be expected to cause the alleged

symptoms; however, 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.

2 Claimant also argues that the ALJ committed legal error by failing to

adhere to Social Security Ruling 96-8p when setting forth her residual

functional capacity. Claimant waived that argument by failing to raise it

before the district court. O’Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056,

1063 n.3 (9th Cir. 2007). In any event, we have considered the argument

and found it unpersuasive.
8 BURRELL V. COLVIN

The ALJ’s decision then drifts into a discussion of the

medical evidence; it provides no reasons for the credibility

determination. Sifting through the ALJ’s decision, the

government finds three reasons for the adverse credibility

determination, albeit dispersed in seemingly random places

in the decision. We address those reasons in turn.

1. Daily Activities Inconsistent with Testimony

The ALJ noted, three single-spaced pages after the

adverse credibility determination, in the midst of an analysis

of medical sources, that “the claimant’s self-reports to the

physical therapist do not indicate the degree of limitation

suggested by the medical source statement, and indeed is

inconsistent with the claimant’s testimony at [the] hearing.” 

Inconsistencies between a claimant’s testimony and the

claimant’s reported activities provide a valid reason for an

adverse credibility determination. Light v. Soc. Sec. Admin.,

119 F.3d 789, 792 (9th Cir. 1997).

But the ALJ did not elaborate on which daily activities

conflicted with which part of Claimant’s testimony. The only

mention found in the ALJ’s decision is five pages earlier,

when summarizing Claimant’s testimony: “Although she

testified she was unable to use a vacuum, she reported to the

physical therapist that she did use the vacuum and was able

to perform most housekeeping activities.”3 As to vacuuming,

Claimant stated at the hearing in December 2009:

3 The latter part of this finding—concerning most household chores—is

plainly consistent with Claimant’s testimony. She testified at the hearing,

consistent with her reports to the physical therapist, that she can perform

most household chores.
BURRELL V. COLVIN 9

Vacuuming and I don’t get along well at

this point. It hurts to do the stretching and

pulling. I occasionally sweep with a broom

and dustpan, wipe down the kitchen counters,

sometimes load the dishwasher. It takes

longer because I have to use my right hand to

do it.

The ALJ cited six worksheets that asked Claimant whether

her impairments affected her ability to do chores such as,

specifically, vacuuming. In those worksheets, which span the

period March 2009 to June 2009, Claimant checked the box

“Yes, Limited a little” five times, and she once checked the

box for “Yes, Limited a lot.” Also in June 2009, the physical

therapist reported, without elaboration, that Claimant “can

push the vacuum.”

Substantial evidence does not support the ALJ’s

determination that there is a conflict concerning Claimant’s

ability to vacuum. Claimant consistently reported to the

physical therapist that she had trouble vacuuming, which is

entirely consistent with her testimony at the hearing that

stretching and pulling, which are required to vacuum, cause

her pain. Claimant did not testify that she never could

vacuum; she stated that vacuuming was difficult for her “at

this point.” (Emphasis added.)

Perhaps recognizing the flaw in the ALJ’s reasoning

about vacuuming, the government declines to mention

vacuuming. Instead, the government identifies other alleged

inconsistencies between Claimant’s hearing testimony and

her reported daily activities, such as knitting and lace work. 

But the ALJ did not identify those inconsistencies. “We are

constrained to review the reasons the ALJ asserts.” Connett
10 BURRELL V. COLVIN

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

make clear that we may not take a general finding—an

unspecified conflict between Claimant’s testimony about

daily activities and her reports to doctors—and comb the

administrative record to find specific conflicts. “General

findings are insufficient; rather, the ALJ must identify what

testimony is not credible and what evidence undermines the

claimant’s complaints.” Lester v. Chater, 81 F.3d 821, 834

(9th Cir. 1995). “To support a lack of credibility finding, the

ALJ was required to point to specific facts in the record . . . .” 

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

(emphasis added) (internal quotation marks omitted). Here,

the ALJ stated only—in passing and in a different section

than the credibility determination—that Claimant’s selfreports were inconsistent in some unspecified way with her

testimony at the hearing. That finding is insufficient to meet

“our requirements of specificity.” Connett, 340 F.3d at 873.

2. Conflict with Medical Record

The government argues that Claimant’s testimonythatshe

has, on average, one or two headaches a week conflicts with

the medical record. As an initial matter, the ALJ never

connected the medical record to Claimant’s testimony about

her headaches. Although the ALJ made findings—discussed

below—concerning Claimant’s treatment for headaches, he

never stated that he rested his adverse credibility

determination on those findings. For that reason alone, we

reject the government’s argument that the history of treatment

for headaches is a specific, clear, and convincing reason to

support the credibility finding.

Moreover, the ALJ’s findings concerning Claimant’s

treatment history are plainly erroneous. The ALJ stated that,
BURRELL V. COLVIN 11

“[d]uring the period under review, there is a gap in treatment

from September 7, 2007, when the claimant was seen to

obtain a work excuse for family medical leave, until

September 2, 2008.” As the government concedes, that

statement is contrary to the record. Claimant was treated on

November 1, 2007, November 8, 2007, November 29, 2007,

and May 19, 2008. The ALJ apparently overlooked

significant medical records when assessing whether the

medical record conflicted with Claimant’s testimony.

The ALJ also stated that “[t]here is no record of primary

care for headaches, neck, or back pain subsequent to October

2008 other than the medical source statement dated

November 9, 2009 and a MRI report dated October 14,

2009.” Yet four different medical records from that period

contain reports of headaches or neck pain.4See Report dated

April 21, 2009 (although Claimant’s neck pain was much

improved, her migraine headaches continued and were no

better than before her surgery); Report dated May 5, 2009

(ongoing headaches without improvement); Report dated

August 2, 2009 (head pain); Report dated September 23, 2009

(“neck pain no change”).

In sum, the ALJ did not make a specific finding linking a

lack of medical records to Claimant’s testimony about the

intensity of her back, neck, and head pain and, in any event,

the record does not support the ALJ’s findings.

4 Only one of those reports was before the ALJ but, as discussed above,

we review all the evidence submitted to the Appeals Council as if it had

been before the ALJ. Brewes, 682 F.3d at 1163.
12 BURRELL V. COLVIN

3. Secondary Gain

The ALJ stated that, “although the claimant testified she

missed work due to pain, her primary care physician, Dr.

Riley, noted on July 13, 2007, that the claimant ‘does not like

work, has mentioned several times she does not care if they

fire her’ and questioned whether there was an issue of

secondary gain.” The ALJ is correct that Claimant testified

that she missed work due to pain. Dr. Riley’s note stated that

Claimant “apparently does not like work much and has

mentioned to me several times that she does not care if they

fire her, and apparently there is some sort of conflict there. 

I am not sure if there is any secondary gain, but she is

certainly not enamored of her job.”

As an initial matter, the fact that Claimant did not like her

job is not, without more, a valid reason to discredit her

testimony about why she missed work. One can dislike (or

like) a job and yet be forced to miss some days from work

because of illness or pain. Rather, the ALJ apparently read

Dr. Riley’s note as questioning whether Claimant was

exaggerating her symptoms in order to miss work that she

disliked.5 Read in that way, substantial evidence arguably

supports the ALJ’s finding. But even if we were to read Dr.

Riley’s note thus, we conclude that this one weak reason is

5

If that is what Dr. Riley meant, he expressed the thought inartfully. 

“Malingering” or “exaggerating” is the appropriate term. “Secondary

gain” means “external and incidental advantage derived from an illness,

such as rest, gifts, personal attention, release from responsibility, and

disability benefits.” Dorland’s Illustrated Medical Dictionary 721 (29th

ed.). Secondary gain is not the same as malingering; secondary gain is an

incidental advantage derived from an actual illness. That is, Claimant’s

illnesses and pain allowed her to miss work that she may have disliked. 

But that conclusion does not necessarily mean that she was malingering.
BURRELL V. COLVIN 13

insufficient to meet the “specific, clear and convincing”

standard on this record. Molina, 674 F.3d at 1112; see also

Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007)

(holding that “we must consider the entire record as a whole,

weighing both the evidence that supports and the evidence

that detracts from the Commissioner’s conclusion, and may

not affirm simply by isolating a specific quantum of

supporting evidence.” (citation and internal quotation marks

omitted)). Dr. Riley treated Claimant for several years, and

this is the only statement of its type. Moreover, Dr. Riley

merely suggested that perhaps there was an issue of

secondary gain—he did not affirmatively find that Claimant

was exaggerating or malingering. Because the ALJ’s other

reasons—discussed above—are not supported by substantial

evidence, and because this reason is weak on this record, we

conclude that the ALJ erred in discrediting Claimant’s

testimony. See Carmickle v. Comm’r, Soc. Sec. Admin.,

533 F.3d 1155, 1162 (9th Cir. 2008) (holding that, when the

ALJ errs, we must inquire “whether the ALJ’s decision

remains legally valid, despite such error”).

B. Dr. Riley’s Assessment

Dr. Riley, Claimant’s treating physician, found that

Claimant experienced headaches on a regular basis that

“seriously affect[ed]” her ability to function. All other

treating and examining doctors concluded that Claimant

could perform medium exertion work with only minor

limitations. The ALJ adopted the consensus view and

rejected Dr. Riley’s view. Claimant argues that the ALJ

erred. As noted, because Dr. Riley’s opinion was

contradicted, we review the ALJ’s rejection of Dr. Riley’s

opinion for “specific and legitimate reasons that are
14 BURRELL V. COLVIN

supported by substantial evidence.” Bayliss, 427 F.3d at

1216.

The ALJ gave two related reasons for rejecting Dr.

Riley’s assessment. The ALJ reasoned that Dr. Riley’s

opinions “are quite conclusory, providing very little

explanation of the evidence relied on in forming that

opinion.” The ALJ also opined that Dr. Riley’s conclusions

were contrary to the medical evidence and to Dr. Riley’s own

treatment notes.

“[A]n ALJ may discredit treating physicians’ opinions

that are conclusory, brief, and unsupported by the record as

a whole or by objective medical findings.” Batson v. Comm’r

of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004)

(emphasis added) (citation omitted). Indeed, Dr. Riley’s

assessments are of the “check-box” form and contain almost

no detail or explanation. But the record supports Dr. Riley’s

opinions because they are consistent both with Claimant’s

testimony at the hearing and with Dr. Riley’s own extensive

treatment notes which, as discussed above, the ALJ largely

overlooked. The ALJ clearly erred in his assessment of the

medical evidence, overlooking nearly a dozen reports related

to head, neck, and back pain.

The government offers a third reason: It was proper for

the ALJ to reject Dr. Riley’s assessment because Dr. Riley

relied primarily on Claimant’s own subjective reports. “An

ALJ may reject a treating physician’s opinion if it is based to

a large extent on a claimant’s self-reports that have been

properly discounted as incredible.” Tommasetti v. Astrue,

533 F.3d 1035, 1041 (9th Cir. 2008) (internal quotation marks

omitted). The government’s argument fails for two

independent reasons. First, the ALJ never gave this reason
BURRELL V. COLVIN 15

for rejecting Dr. Riley’s opinion. We reiterate that we “are

constrained to review the reasons the ALJ asserts.” Connett,

340 F.3d at 874. Second, as noted above, the ALJ failed to

give specific, clear, and convincing reasons for discrediting

Claimant’s testimony. Because the ALJ did not “properly

discount[]” Claimant’s testimony, this reason fails. 

Tommasetti, 533 F.3d at 1041 (emphasis added).

We conclude that, in rejecting Dr. Riley’s assessment, the

ALJ did not give specific and legitimate reasons supported by

substantial evidence.

C. Remedy

Because the ALJ erred, we next address the proper

remedy. On this point, the parties offer starkly differing

views. Claimant asserts that, because the ALJ’s reasons for

discrediting her testimony and Dr. Riley’s assessment are

legally insufficient, we have no choice but to credit as true

both her testimony and Dr. Riley’s assessment and, therefore,

to remand for an award of benefits. The government asserts,

by contrast, that our longstanding rule crediting evidence as

true and remanding for an award of benefits is erroneous and

that we have no choice but to remand on an open record for

further proceedings.

Both parties overreach. We recently clarified the

selection of an appropriate remedy in Garrison v. Colvin,

759 F.3d 995 (9th Cir. 2014). The government is incorrect

that we may not credit evidence as true and remand for an

award of benefits. Id. at 1020 n.25. But Claimant also is

incorrect that we are required to credit evidence as true and

remand for an award of benefits. Id. at 1020–21. Before we

may remand a case to the ALJ with instructions to award
16 BURRELL V. COLVIN

benefits, three requirements must be met: “(1) the record has

been fully developed and further administrative proceedings

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

provide legally sufficient reasons for rejecting evidence,

whether claimant testimony or medical opinion; and (3) if the

improperly discredited evidence were credited as true, the

ALJ would be required to find the claimant disabled on

remand.” Id. at 1020. Even if those requirements are met,

though, we retain “flexibility” in determining the appropriate

remedy. Id. at 1021. In particular, 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, we need not determine whether the three

preliminary requirements are met because, even assuming

that they are, we conclude that the record as a whole creates

serious doubt as to whether Claimant is, in fact, disabled. By

contrast to Garrison, 759 F.3d at 1022, where the government

did not “point to anything in the record that the ALJ

overlooked and explain how that evidence casts into serious

doubt Garrison's claim to be disabled,” evidence in this

record not discussed by the ALJ suggests that Claimant may

not be credible. For example, Claimant’s testimony at the

hearing concerning her ability to knit appears to contradict

the medical record. Similarly, the record suggests that

Claimant’s headaches were secondary to her neck problems,

but her neck problems improved, both objectively and

subjectively, after surgery. Viewing the record as a whole,

we conclude that Claimant may be disabled. But, because the

record also contains cause for serious doubt, we remand with

instructions that the district court remand to the ALJ for

further proceedings on an open record.
BURRELL V. COLVIN 17

CONCLUSION

Substantial evidence supports neither the ALJ’s

discrediting of Claimant’s testimony nor the ALJ’s rejection

of Dr. Riley’s medical assessment. Accordingly, we reverse

the district court’s contrary conclusion. Because the record

creates “serious doubt” as to whether Claimant is, in fact,

disabled, we remand to the district court with instructions to

remand to the ALJ on an open record for further proceedings. 

We express no view as to the appropriate result on remand.

REVERSED and REMANDED with instructions.

SCHROEDER, Circuit Judge, dissenting:

I agree with the majority that substantial evidence

supports neither the ALJ’s discrediting of Claimant’s

testimony nor his rejection of treating physician Dr. Riley’s

medical assessment. Yet the majority refuses to credit that

evidence as true.

Our court has laid down three prerequisites for crediting

such evidence as true: first, that the record is fully developed,

and remanding for further proceedings would not be useful;

second, that the ALJ failed to give legally sufficient reasons

for rejecting the evidence; and third, that the discredited

evidence would require the ALJ to find the claimant disabled

if credited as true. Garrison v. Colvin, 759 F.3d 995, 1020

(9th Cir. 2014). The majority assumes, without deciding, that

these prerequisites are satisfied in this case. I would hold

they are satisfied.
18 BURRELL V. COLVIN

The record is fully developed, including the testimony of

a vocational expert. No further proceedings are required

where a vocational expert answers questions about a

hypothetical person with a claimant’s alleged limitations. See

id. at 1021 n.28. The reasons given by the ALJ for rejecting

the evidence are not sufficient, as the majority holds. In my

view, if that evidence is credited as true, Claimant is disabled.

Claimant testified that after back surgery for a tumor, she

had great difficulty gripping and grasping items with her left

hand. Because of back and neck pain, she could not sit,

stand, or walk for long periods, and could lift no more than

ten pounds. Claimant additionally suffered from debilitating

headaches and migraines. Dr. Riley’s reports reflect that the

severity of her hand issues, chronic pain, and headaches

seriously impacted her ability to perform work tasks. If this

evidence is credited as true, there is no way that she could

return to her previous employment as a receptionist and

manicurist. The vocational expert also testified that with

those limitations, Claimant is unable to sustain any other kind

of work.

The majority nevertheless remands the case on an open

record for further consideration. It does so on the basis of its

conclusion that the record raises “serious doubt” as to

whether Claimant is disabled. The majority identifies the

correct legal standard from this court’s recent opinion in

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

analyzes our decisions involving the “credit-as-true” rule and

holds that where the prerequisites are satisfied, we remand for

an award of benefits. Id. at 1018–21. The only exception to

the rule is where the record “as a whole” raises “serious doubt

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

meaning of the Social Security Act.” See id. at 1021.
BURRELL V. COLVIN 19

The majority invokes the exception, but without a record

to support it. The majority points to two relatively vague

perceived inconsistencies: first, that the medical record

concerning Claimant’s ability to knit conflicted with her

testimony at the hearing that she could no longer knit; and

second, that the record suggests the headaches Claimant

continued to complain of were secondary to her neck

problems, and should have improved when the neck problems

did. My reading of the record reflects no inconsistency with

respect to either.

The record as a whole reflects a progressive decline in

Claimant’s hand function that is consistent with her testimony

at the hearing that she could no longer knit. In July 2008,

Claimant reported knitting, sewing, and doing lacework for

several hours a day before her surgery, but the medical

records show that her hand function deteriorated after the

March 2009 procedure. In July 2009, Claimant told her

physical therapist she could do some sewing and knitting, but

reported that she was down from knitting 500 stitches to 250. 

In September 2009, Claimant reported she was able to knit

only 150–200 stitches at a time. In November 2009,

Claimant stopped physical therapy, with the therapist noting

that her hand function was no longer improving with

treatment. At her hearing in December 2009, Claimant

testified she “attempted to do the things that have always

brought pleasure to me, like my s[e]wing, my knitting, my

crocheting, my lace-making, and I am incapable of doing

those things at this point.” Claimant’s hearing testimony is

consistent with her reports of an overall progressive decline

in her hand condition after surgery.

Claimant’s testimony regarding her ability to knit is no

more inconsistent with the medical record than her testimony
20 BURRELL V. COLVIN

regarding her difficulties vacuuming, which the majority

rejects as a reason for finding Claimant’s testimony not

credible. See Maj. Op. at 8–9. The majority correctly

observes that the physical therapy reports, stating Claimant

could push a vacuum and was limited only “a little” in her

ability to vacuum, were consistent with her later hearing

testimony that she had trouble vacuuming “at this point.” 

The majority should have recognized a progressive decline

with respect to knitting as well.

Moreover, both knitting and vacuuming pertain to daily

home activities that provide a questionable basis for

discrediting pain testimony in any event. See Garrison,

759 F.3d at 1016. As we said in Garrison, “[w]e have

repeatedly warned that ALJs must be especially cautious in

concluding that daily activities are inconsistent with

testimony about pain, because impairments that would

unquestionably preclude work and all the pressures of a

workplace environment will often be consistent with doing

more than merely resting in bed all day.” Id.

As for the headaches, the majority recognizes that the

ALJ erred in the finding that Claimant did not seek consistent

treatment for her headaches after October 2008. Contrary to

the ALJ’s finding, there are at least six reports in the record

of Claimant seeking headache treatment after that date. There

is no medical opinion that the headaches should have

disappeared after surgery. The most we have is a doctor’s

report speculating that Claimant’s headaches were probably

related to her neck issues on account of tension the latter

produced. Yet Claimant’s record of treatment for continuing

headaches after surgery belies that speculation. Her

testimony that her headaches continued after surgery even

though the neck pain improved was consistent with the
BURRELL V. COLVIN 21

medical record. That testimony should not be considered

undermined by a doctor’s guesswork.

I would therefore follow the general rule as laid down in

Garrison and remand the case for an award of benefits. 

Instead, the majority requires Claimant to endure another

round of administrative hearings to consider a condition that

came into existence seven years ago.

Accordingly, while I agree with much of the majority’s

reasoning, I must respectfully dissent from its bottom line. 

The Claimant should be awarded benefits now.