F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

A D R I A N B U R R E L L , Plaintiff-Appellant

,

v.

C A R O L Y N W

. C O L

V I N , Commissioner of Social Security

,

Defendant-Appellee

. No. 12-16673

D.C. No. 2:11-cv-00749- SRB

OPI NI O N

A ppeal from the United States District Court for the District of Ariz o na Susan R. B olton, District J udg e, Presiding

Arg ued J une 11, 2014 Resubmitted December 19, 2014 San F rancisco, California

F iled December 31, 2014

B efore: Mary

M. Schroeder, Susan P. Graber, and J ay S. B y bee, Circuit J udg es.

Opinion by

J udg e Graber; D issent by

J u dg e SchroederB U R R E L L V

. C O L

V I N 2

SUMMARY *

Social Security

The panel reversed the district court’s decision affirming the Social Security Commissioner’s denial of Adrian B urrell’s application f

or d isability insuranc e b e n e f i t s p u r s u a nt to the Social Security Act, and remanded the case f or f urther proceeding s.

The panel held that there was not substantial evidence to support t he administrative law judg e’s ( “AL J ” ) rejection o f B urrell’s testimony

, or the A L J ’s r ejection of the m e d i c al
assessment by B urrell’s treating phy sician. The panel also held that because it had “serious doubt” a s to whether B urrell
was, in fact, disabled pursuant to Garri s o n v

. Colvin

, 7 5 9 F. 3 d 995, 1021 (9th Cir. 2014), the district court shal l remand the case to the AL J for further proceedings

, a n d the AL J shall not be required to credit-as-true any evidence.

J udg e Schroeder d issented. J udg e Schroeder ag reed with the majority that substantial evidence supported neither the AL J ’s discrediting o f B urrell’s testimony nor his rejection o f the treating phy sician’s medical assessm e nt, but she would remand for a

n award of benefi t s

. J udg e Schroeder would hold that the t hree prerequisites of Garrison are met, would credit-as-true the dis c redited evidence, and would not find that there were seri o us doubts as to whether B urrell was disabled within the meaning of the Act.

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.B U R R E L L V

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V I N 3

COUNSEL

Eric G. Slepian (arg

ued), Slepian L aw Offic e , Phoenix

, Ariz ona, for Plaintiff-Appellant.

Sarah Van Arsdale B erry (arg u ed), Special Assistant United Sta t e s Attorney
, Social Security Administration, General Counsel’ s Office, Denver, Colorado; Michael A. J ohns, Assistant United States Attorney
, Phoenix

, Ariz o n a , for Defendant-Appellee.

OP INION

GRAB ER, Circuit J udg e:

Clai m ant Adrian B urrell applied for social security disability benefits primarily b e c a u s e of debilitating headaches resulting from neck and back conditions. An administrative law judg e (“AL J ” ) f

o u n d her not disabled, the Appeals Council denied r eview, and the district cour t affirmed the denial of b enefits. W e conclude that subst a n t i al evidence supports neither the AL J ’ s rejection of Claimant’s testimony

nor h is rejection of the medical assessment by Cla i m ant’s treating phy sician, Dr. W illiam Riley

. According ly

, we

reverse the distric t court’s decision. B ut, because w e have “seri o u s d o ubt” as to whether Claimant is, in fact, disabled, Garrison v. Colvin

, 7 5 9 F

. 3d 9 95, 1021 (9th Cir. 2 014), the district court shal l r e m a n d the case to the A L J for f urther proceeding s on an open r e c ord; that is, on remand, we do not require the A L J t o c r edit as true Claimant’s testimony

, Dr. Riley ’s assessment, or any other evidence.B U R R E L L V

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V I N 4

F ACTUAL

AND PROCEDURAL

HI STORY

Claimant filed an application for benefits, a l l e g ing a disability onset date o f December 1 8, 2007. F or y ears, Claimant has suffered pain a n d headaches resulting from various neck and back conditions, including a tumor near the cervical spine, disc herniation, deg enerative disc conditions, and a broad-based disc bulg e. Medical providers tracked deg enerative d isc chang es f rom the early 1990s throug h 2009, when she underwe n t back surg ery following a seiz ure. Claimant long had suffered from mild ting ling in her left hand. After surg ery , she ex p erienced g reat difficulty g ripping and g rasping items with her left hand.

At the hearing before the AL J
, Claimant testified that she

ex p eriences an averag e o f one to two d ebil i t a t i n g mig raine headaches per week. W hen they occur, the headaches require h e r to lie down in a d ark room for the remainder of t h e d a y

. Claimant testified that, because of neck a nd back pain, she is able to stand, w alk, a

nd sit for limited d

urati o n s o n l y

. She

ex p eriences pain when lifting heavy o b jects and has trouble sleeping

.

The AL J issued a written d ecision conclu d ing that Claimant is n ot d i s a b l ed for purposes of the Social Security Act. The AL J concluded that Claimant has “ s e v e r e” impairments of “chronic neck and low back pain

. . . ; im p a i r ed g rip in the left h and; and chronic headaches.” B ut she has the residual functional capacity to perform “medium

ex e r tion” w ith additional limitations that she avoid ex posure to workplace haz ards and n ot operate an automobile. I n reaching that c onclusion, the AL J found Cl a i m a n t ’ s t e s timony
not credible to the ex tent that it conflicted w i t h the residual functional capacity

, and he rejected the c ontrary conclusionsB U R R E L L V

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V I N 5

of Claimant’s primary care doctor, Dr. Riley

. F inally

, the AL J concluded that Claimant was not disabled b e c a u se she

c a n perform her past relevant work as a receptionist an d a manicurist.

Claimant soug ht review by the Appeals Council. As part of that review, she submitted additional medical ev i d ence. 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 REVI EW

W e review de novo the di s t r i ct court’s o r der affirming a denial of social secu ri t y benefits. Hill v. Astrue
, 698 F .3d 1153, 1158 (9th Cir. 2012).

W h en, as here, “the Appeals Council c o n siders new evidence in deciding whether to r eview a decision of the A L J
, that evidence becomes part of the a dministrative record, which the district court [ and this co u r t ] must consider when

re v i e wing 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).

W h ere, as h e r e, Claimant has presented evidence of an underly ing impairment and t h e go vernment does not a rg ue that there is evidence o f maling ering

, 1 w e review t h e A L J ’s

1 A s d iscu s sed b elo w , in P art A

- 3
, on e rep ort in th e reco rd s u g g ests th at Claim an t m ay h av e b een m o tiv ated b y s eco n d a ry g a i n , th at is, an i n c i d e n t al b en ef

it o f an illn ess. B u t th e g o v ern m en t h as n o t arg u ed th at th is iso lated rep o r t eq u als ev id en ce o f m a lin g erin g f o r p u rp o ses o f ou r stan d ard o f

rev iew

.B U R R E L L V

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V I N 6

rejection of her testimony for “specific, c lear and convincing

r e a s o n s .” Molina v. Astrue
, 674 F .3d 1104, 1112 (9th Ci r. 2012). The g overnment disputes that standard o f r eview. Rely ing primarily on Bunnell v. Sullivan

, 947 F .2d 341 (9th Cir. 1991) (en banc), the g o vernment arg ues that we r e v i ew the AL J ’s decision only for specific reasons and tha t “ cl e ar and convincing ” reasons are not required. W e disag ree.

I n B unnell

, we resolved a long s t a nding c onflict in the

cases a bout whether a clai m a n t must produce objective medical evidence to demonstrate the ex tent of his o r her pain. Id. at 3 42. As part of our analy sis, we concluded that the AL J ’s reasons for r ejecting a claimant’s test i m o n y must be “specific.” Id. at 345. I t is true that the Bunnell court did not mention “clear and c onvincing r easons.” B ut that standard
pr e d a t e d the decision in Bunnell

, e.g. , Swenson v. Sullivan

, 876 F .2d 683, 687 (9th Cir. 1 989) ; Ga llant v. Heckler

, 7 5 3 F

. 2d 1450, 1455 (9th Cir. 1 984), and there is no indication that Bunnell intended to overrule th at p r ecedent. I ndeed, the cases following Bunnell read it as supplementing the “clear a

nd c onvincing ” standard with the requirement that the reasons also must be “specific.” E.g.
, Johnson v. Shalala

, 60 F .3d 1428, 1433 (9th Cir. 1995). O ur more recent cases have combined the two standards into the now-f a m i l i ar phrase that an AL J must provide specific, clear, a nd convincing reasons. M

o l i n a , 674 F .3d at 1112. There is no conflict in the caselaw, an d w e r eject the g overnment’s
arg ument that Bunnell ex cised the “clear a nd convincing ” requirement. W e therefore review the AL J ’s discrediting o f Claimant’s testi mony for specific, clear, and convincing

reasons.

F inally

, because other d octors’ opinions contradicted the opinion o f Dr. Riley

, we r e v i e w the AL J ’s rejection of Dr.B U R R E L L V

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Riley ’s opinion for “specific and leg itimate reasons that a re supported by substantial e vidence.” Bayliss v. Barnhart

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

D I SCUSSI ON

Claimant challeng es the A L J ’s adverse credibi lity determ i n a t i on and his r ejection of Dr. Riley ’s reports. 2 The parties also dispute the appropriate remedy

, in the event that we conclude that the AL J erred.

A. Claimant’s Credibility

After stating the r e sidual functional capacity

, the AL J
wrote:

After careful conside r ation o f the evidence, the u ndersig ned finds that t h e claimant’s medically determinable impa irments could

reas o n ably be ex pected to cause the alleg ed

s y m p t o m s ; h o w e v e r , t h e c l a i m a n t ’ s

s t a t e m e n t s c o n c e r n i n g t h e i n t e n s i t y , persistence and limiting effe c t s of these
sy mptoms are not credible t o the ex tent they

are inconsistent with the above resid u al functional capacity

assessment.

2 Claim an t also arg u es th at th e A L J co m m itted leg al erro r b y f

ailin g to ad h ere to S o c i al Secu rity Ru lin g 9 6

- 8 p w h en settin g f

o rth h er resid u al f u n ctio n al cap acity

. Claim an t w aiv ed th at arg u m en t b y f ailin g to raise i t b ef o re th e d istrict co u rt. O’Gu in n v. Lo velo ck Co rr. Ctr.
, 5 0 2 F.3 d 1 0 5 6
, 1 0 6 3 n .3 (9 th Cir. 2 0 0 7 ). In an y ev en t, w e h av e co n sid ered th e arg u m en t

an d f o u n d it u n p ersu asiv e.B U R R E L L V

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V I N 8

The AL J ’ s d ecision then drifts into a discussion of the medical evid e n c e ; it provides no reasons for the credibility determination. S ifting throug h the AL J ’s decision, the
g overnment finds three reasons for the adverse c redibi l i ty determination, albeit dispersed in seeming ly random p l aces in the decision. W e address those reasons in turn.

1. Daily Activities Inconsistent with Testimony

The AL J noted, three sing le-spaced p ag es after the adverse credibility determination, in the midst of an analy sis of medical sources, th a t “the claimant’s self-reports to the
p h y sical therapist do not indicate the d eg ree of limitation
sug g ested by the medical source statement, and indeed is inconsistent with the c laimant’s testimony at [the] hearing

. ” I nconsistencies between a claimant’s testimony and the claimant’s reported activities provide a valid reason for an adverse credibility d etermination. Light v. Soc. Sec. Admin.

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

Bu t the AL J did not elaborate on which daily activit i e s conflicted with which part of Claimant’s testimony

. The only mention found in the AL J ’s d ecision i s five pag es earlier, when summariz ing Claimant’s testimony : “Altho u gh she testified she was unable to use a vacuum, she reported to the phy sical therapist th at s h e d id use the vacuum and was able
to p erform most housekeeping activities.” 3 As to vacuuming

, Claimant stated at the hearing in December 2009:

3 T h e l atter p art o f th i s f

i n d in g

— co n cern i n g m o st h o u seh o ld ch o res—is
p lain ly co n s isten t w ith Claim an t’ s testim o n y

. Sh e testif i ed at t h e h earin g , co n sisten t w ith

h er rep orts t o th e ph y sical th erap ist, th at s h e can p erf o rm

m o st h ou seh o ld ch o res.B U R R E L L V

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V I N 9

Vacuumin g and I don’t g et along well at this point. I t hurts t o do the stretching a nd pulling

. I occasionally sw e ep with a broom and dustpan, w ipe down the kitchen counters, sometimes load th e d ishwasher. I t takes long er because I have to use my rig ht hand to do it.

The AL J cited six worksheets that asked Claimant whether her impairments affected her ability to do chore s such as, specifically

, vacuuming

. I n those w orksheets, which span the period March 2009 to J une 2009, Claimant checked the box “Yes, L imited a l i t t l e” f

ive times, and she once checked the box for “Yes, L imited a lot.” Also in J une 2009, the phy sical therapist reported, without elaboration, that Claimant “ c an push the vacuum.”

Substantial evidence d o e s not support the AL J ’s determination that there is a conflict concerni n g Claimant’s ability to vacuum. Claimant c onsistent l y reported to the phy sical therapist that she had trou b l e vacuuming

, which is entirely consistent w ith her testimo n y a t the hearing that stretching a

nd pulling

, which a re required to vacuum, cause her pain. Claimant did not testify that she never could
vacuum; she stated that v a cuuming was difficult f or her “ at this point .” (Emphasis added.)

Perhaps recog niz ing the flaw in the AL J ’ s r easoning about vacuuming

, the g overnment d e clines to mention vacuuming

. I nstead, the g overnment identifies o ther alleg ed inconsistencies between Claimant’s hearing testimony a nd her r epo rt ed d aily activities, such as knitting and lace work. B ut the AL J did not identify those inconsistencies. “W e a re constrained to review the reasons the AL J asserts.” ConnettB U R R E L L V

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v. Barnhart

, 3 4 0 F .3d 871, 8 74 (9th Cir. 2 003). Our decisions make clear that we may not take a g eneral f inding —an unspecified conflict b e tween Claimant’s testimony about daily activities a

nd her reports to doctors—and co m b t h e administrative record to f i nd specific conflicts. “ General finding s are insufficie n t ; r a ther, the AL J must identify what testimony is not credible and w hat e vidence undermi n es the claimant’s compl a i n t s .” Lester v. Chater

, 81 F .3d 821, 834 (9th Cir. 1995). “To support a lack of credibility finding

, the AL J was r equired to point to specific facts in the record

. . . . ” Vasquez v. Astrue
, 572 F .3d 5 8 6
, 592 (9th Cir. 2 009) (emphasis added) ( internal quotation marks omitted). Here, the AL J stated o nly

— in passing an d i n a different section than the credibility det ermination—that Claimant’s selfreports were inconsistent in some unspecifi e d way with her testimony at the h earing

. That finding is insufficient to meet “our requirements of specificity .” Connett
, 340 F

. 3d a t 873.

2. Conflict with Medical Record

The g overnment arg ues that Claimant’s testimo ny t h a t s h e has, on averag e, one or two headaches a week conflicts with the medical record. As a n initial matter, the AL J never connected the medical record to Claimant’s testimony about her headaches. Althoug h the AL J made f inding s—discussed below—concerning Claim a n t ’s treatment for headaches, he

never stated that he r est ed h is adverse credibility determination o n t h o s e finding s. F or that reason a lone, we reject the g overnment’s arg u ment that the history of treatment for headaches is a specific, c lear, and convincing r e a s o n to support the credibility

finding

.

M oreover, the AL J ’ s finding s c oncerning Claiman t ’s
treatment history are plainly erroneous. The AL J stated that,B U R R E L L V

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“[ d] uring the period under review, there is a g ap in treatment from September 7, 2007, when the claimant w as seen to obtain a work ex cuse for family medical leave, until September 2, 2008.” A s t h e g o vernment concedes, that statement is contrary

to the record. Claimant was treated on November 1, 2007, N ovember 8, 2007, November 2 9, 2007, and May 19, 2008. The AL J apparent l y o verlooked sig nificant medical reco r d s when assessing whether the medical record conflicted with Claimant’s testimony

.

The AL J 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 da ted November 9
, 2 0 09 and a MRI report dated October 14, 2009.” Yet four different medical records from that period contain reports of headaches or n eck pain. 4 S ee Report dated April 21, 2009 (althoug h Claimant ’ s neck pain was much improved, her mig raine headaches continu e d a nd were no better than before h er surg ery ) ; Repor t d a t ed May 5, 2009 (ong o ing h e a d aches without improvement); Report dated Aug ust 2
, 2 009 (head pain); Report dated September 23, 2009 (“neck pain no chang e”).

I n sum, the AL J did not make a specific finding linking a lack of medical records to Claimant’s testim ony about the inten s i ty of her back, neck, and head pain a nd, in any event, the record does not support the AL J ’s finding s.

4 On ly o n e o f th o se rep orts w as bef o re th e A L J b u t, as d iscu ssed ab o v e,

w e rev i ew all th e e v i d e n ce su b m itted to th e A

p p eals Co u n cil as if it h ad b een b ef o re th e A L J

. Brewes , 6 8 2 F.3 d at 1 1 6 3

.B U R R E L L V

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3. Secondary Gain

The AL J stated that, “althoug h the claimant testified she

m issed work due to pain, her p rimary care phy sicia n , D r. Riley

, noted on J uly 13, 2007, that the claimant ‘does n ot like work, h as mentioned se v e ra l times she does not care if they fire her’ and que s t i o ned whether there was an issue o f secondary g ain.” The AL J is c o r rect that C l a i m a n t testified that she missed work due to pain. Dr. Riley ’s note stated that Claimant “appare n t l y does not like work much and has mentioned to me several tim e s that she d oes not care if they fi r e h er , and apparently there is some sort of conflict there. I am n ot sure if ther e i s an y secondary g ain, b u t 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 re a s on to discredit her testimony a

bout why she missed w ork. O n e c a n d islike (or like) a job a

nd y et be forced to miss s o m e d a y s from work because of illness or pain. Rather, the A L J apparently read Dr. Riley ’s note as questioning whether Claimant was

ex a g g erating her sy

mptoms in o rder to miss work t h a t she disliked. 5 Read in that way , substantial evidence a rg u ably supports the AL J ’s finding . B u t even if we were to read Dr. Riley ’s note thus, we c o n c l u d e that this one w eak reason is

5 If th at i s w

h at D r. Riley m ean t, h e ex p r essed th e th o u g h t in artf u l ly

.
“ Malin g erin g ” o r “ ex ag g eratin g ” is th e ap p ro p riate term

. “ Sec o n d a ry g ain ” m ean s “ ex tern al an d in cid en tal a d v a n t ag e d eriv ed f ro m an illn ess,

su ch a s r e s t , g if

ts, p erso n al atten tio n , release f ro m resp o n sib ility

, an d d isab i lity ben ef

its.” Do rla nd ’s Illu stra t ed Med ica l Dictio n a r y 7 2 1 (2 9 th ed .). Seco n d ary g ain i s n o t th e sam e as m alin g erin g ; seco n d ary g ain is an i n c i d e n t a l ad v an tag e d eriv ed f ro m an actu al illn ess. T h at is, Claim an t’ s illn esses an d pai n allo w ed h er t o m iss w o rk th at sh e m ay h av e dislik ed

. B u t th at co n clu sio n d oes n o t n ecessarily m ean th at sh e w as m alin g erin g

.B U R R E L L V

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insufficient to meet t h e “specific, clear and convincing ” standard on t h is record. Molina

, 674 F .3d at 1112; see also Lingenfelter v

. Astrue
, 504 F .3 d 1028, 1 035 (9th Cir. 2 007) (holding that “we must consider the entire record as a whole, weig hing both the eviden c e that supports and the evidence that detracts f

rom the Co mmissioner’s conclusion, and may not affirm simply by isolating a sp e c i f ic quantum o f supporting evidence.” (citation and internal quotation marks

om i t t e d)). Dr. Riley treated Claimant for several y ears, a nd this is the only statement of its ty pe. Moreover, Dr. Riley merely sug g ested that p erhaps there was an issue o f secondary gain —he did not a f firmatively find that Claimant

was ex ag g erating o r maling ering

. B ecause the AL J ’s other reasons—discussed above—are not supported by substantial evidence, and because this reason is weak on this record, we conclude that the AL J erre d i n d iscrediting Claimant’s testimony

. See Carmickle v. Comm ’ r , S o c. Sec. Admin.

, 533 F .3d 1 155, 1162 (9th Cir. 2008) (holding that, when the A L J e r rs, we must inquire “whether the AL J ’s decision remains leg ally

valid, despite such error”).

B

. Dr. Riley’s Assessment

Dr. Riley

, Cla i mant’s treating p hy sician, found that Claimant ex perienced headaches o n a r eg ular basis that “seriously a ffect[ ed] ” her abili ty to function. All other treating and ex amining doctors concluded that Cla i m ant could perform medium e x e rt ion work with only minor limitations. The A L J a dopted the consensus view a nd rejected Dr. Ril ey ’s view. Claimant arg ues that the AL J erred. As n o t e d

, because Dr. Riley ’s opinion was contradicted, we review th e AL J ’s rejection o f Dr. Riley ’s opinion f

or “specific and leg itimate reasons that a reB U R R E L L V

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supported by substan t i a l e vidence.” Bayliss

, 427 F .3d at 1216.

The AL J g ave t w o related r easons for rejecting Dr. Ril e y ’s a ssessment. The AL J reasoned that Dr. Riley ’s opinions “are quite conclusory

, providing v e ry little

e x planation of the evidence relied o n in forming tha t opinion.” The AL J also opined that Dr. Riley ’ s conclusions

were contrary to the medical evidence and to Dr. Riley ’s o wn treatment notes.

“[ A] n AL J may discredit treating phy sicians’ o p inions that a re concluso ry , brief, and unsupported by the record as

a whole or by objective medical findings .” Batson v

. Comm’r of Soc. Sec. Admin.

, 359 F

. 3 d 1 1 9 0, 1195 (9th Cir. 2 004) (emphasis added) (citation omitted)

. I ndeed, Dr. Riley ’s
assessments are of the “ check-box ” form and contain almost

no detail o r ex planation. B ut the record supports Dr. Riley ’s opinions because they are consistent b o t h with Claimant’s testimony at the hearing

and with Dr. Riley ’s own ex tensive
treatment notes which, as discussed above, the AL J larg ely overlooked. The AL J clearly e r re d i n his assessment o f the medical evidence, overlooking nearly a d oz en r eports r elated to head, neck, and back pain.

The go v e r n ment offers a third reason: I t was proper for the A L J to reject Dr. Riley ’s a ssessment because Dr. Riley relied primaril y o n Claimant’s own subjective reports. “An AL J may reject a treating phy sician’s opinion if it is based to

a larg e ex tent on a claimant ’ s self-reports that have been properly d iscounted as incredible.” Tommasetti v. Astrue
, 533 F .3d 1035, 1041 (9th Cir. 2008) ( internal quotation marks omitted). The g o v ernment’s arg u ment fails for two i ndependent reasons. F irst, the AL J n ever g ave this rea s o nB U R R E L L V

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V I N 15

for rejecting D r. Riley ’s opinion. W e reiterate that we “ a r e constrained to review the reasons the A L J asserts.” Connett
, 340 F .3d at 874. Second, as no t ed above, the A L J failed to g ive specific, c lear, and convincing reasons for discrediting C laimant’s testimony

. B ecause the AL J did not “ prope r l y discount[ ]” Claimant’s t estimony

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

W e conclude that, in rejecting D r. Riley ’s assessment, the AL J d id not g ive specific and leg itimate reasons supported b y substantial evidence.

C. Remedy

B e cause the A L J erred, w e nex t add r e ss the proper remedy

. On this point, the parties o ffer starkly d i f f e ring

v i ews. Claimant asserts that, because the AL J ’s r e asons f o r discrediting her testimony and Dr. Ri l e y ’ s assessment a re leg ally insufficient, we h ave no choice but to credit a s t r u e both her testimony and Dr. Riley ’ s assessment and, therefore,
to remand for an award of benefits. The g overnment asserts, by contrast, that our long standin g rule crediting evidence a s true and remanding for an award of b enefits is erroneous a nd that w e have no choice but to rema n d o n a n o pen record for further proceeding s.

B o th parties overreach. W e r ecently c larified the selection of a

n appropriate remedy in Garrison v. Colvin

, 759 F .3d 995 (9th Cir. 2014). T h e g o vernment is incorrect that we may not credit evidence as true and reman d for an award o f b e nefits. I

d. at 1020 n.25. B ut Claimant also is incorrect that we are re q u i r e d to credit evidence as true a nd remand for an award of benefits. I d. at 1020–21. B efore we may remand a case to the AL J with instructions to awardB U R R E L L V

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benefits, three requirements must be met: “(1) the r ecord has been fully developed and further administrative proceeding s would serve no useful p urpose; (2) the AL J has f a i l ed to provide leg ally sufficient reasons for rejecting evide n ce, whether claimant testimony or medical opinion; and (3) if the improperly discredited evidence were c redited as tru e , the AL J w ould be r equ ired to find the claimant disabled on remand.” Id. at 1 0 20. Even if those requirements are met, thoug h, we retain “flex ibility ” in determining the appropriate remedy

. Id. at 1021. I n particular, we may remand on an open r ecord for further procee d i n gs “when the record a s a whole creates serious doubt as to whether the claimant is, in fact, disabled within the meaning of the Social Security Act.” Id.

Here, w e need not d e t e rmine whether the three preliminary requirements are met because, even assuming that they are, we conclude that the record as a whole creates serious doubt a s to w hether Claimant is, in fact, disabled. B y contrast to Garrison
, 759 F .3d a t 1022, where the g overnment did not “point to a n y

thing in the record that the AL J overlooked and ex plain how that evidence casts into serious doubt Garrison' s claim to be disabled,” evidence in this record not discussed by

the AL J sug g e sts that Claimant may
not be credible. F or ex ample, Cl a i m a n t ’ s testimony at the hearing conc erning h er ability to knit appears to contradict the med ical r ecord. Similarly

, the record sug g ests that Claimant’s headaches w ere secondary to her neck p roblems, but h er neck problems improved

, both objectively a nd subjectively

, after surg ery

. Viewing the record as a w h o l e,

we conclude that Claimant may b e disabled. B ut, because the record also contains cause f or serious doubt, we remand with instructions that the dis t ri c t c ourt remand to the AL J for further proceeding s on an open record.B U R R E L L V

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CONCL USI ON

Substantial evidence supports neither the AL J ’s discrediting o f Claimant’s testimony nor the AL J ’ s rejection of Dr. Riley ’s medical assessment. According ly

, we reverse the district court’s co n t r a r y conclusion. B ecause the record
creates “serious do u b t ” a s to whether Claimant is, in fact, disabled, we remand to the district court with instructions to remand to the AL J on an o pen r ecord for further proceeding s. W e ex press no view as to the appropriate result on remand.

REVERSED and REMANDED w ith instructions.

SCHROEDER, Circuit J udg e, dissenting :

I ag ree with the majority t hat substantial evidence supports neither the AL J ’s discrediting of Claimant’s
t e stimony nor his r ejection of treating phy sician D r. Riley ’s medical assessment. Yet the majority refuses to cre d i t t hat evidence as true.

Our court has laid down three prerequisites f or crediting such evidence as true: first, that the record is fully developed, and remanding for further p roceeding s would not be useful; second

, that the A L J failed to g ive leg ally sufficient reasons for rejecting the e v idence; an d t hird, that the discredited evidence would require the A L J to find the claimant disabled if cred i t e d as true. Garrison v

. Colvin

, 759 F .3d 995, 1020 (9th Cir. 2014). The majority assumes, without deciding

, that these prerequisites are satisfied in th i s case. I would hold they are satisfied.B U R R E L L V

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V I N 18

The record is fully developed, including the testimony o f

a vocational ex pert. No further proceeding s are r equired where a vocational ex p e r t answers questions about a hy pothetical person with a claimant’s alleg ed limitations. See id. at 1021 n.28. The reasons g iven by the AL J for rejecting the evidence are not sufficient, a s the majority holds. I n my view, if that evidence is credited as true, Claimant is disabled.

Claimant testified that after back surg ery for a tumor, she had g r eat difficulty g ripping and g rasping items with h er left hand. B ecause o f b a c k and neck p ain, she could not sit, stand, o r walk for lon g p e r i ods, and could lift no more than
ten pounds. Claimant additionally suffered f rom debilitating headaches and mig raines. D r. Riley ’s reports reflect that the severity of h er hand issues

, chronic pain, and headaches seriously impacted her ability to perform work tasks. I f this

e v i d en ce is credited as true, there is n o way that she co u l d
return to her previous employ ment as a receptionist a nd manicurist. The vocational ex pert also te stified that with those limitations, Claimant is unable to sustain any other kind of work.

The majority nevertheless remands the c a s e o n an open record for f

u rther consideration. I t does so on the basis of its conclusion that t h e re cord r aises “serious doubt” as to whether Claimant is disabled. T h e m a jority identifies the
correct leg al standard from thi s c o u rt’s recent opinion in Garrison v. Colvin

, 759 F .3d 995 (9th Cir. 2014). Garrison analy z es our decisions involving the “credit-as-true” rule a nd holds that where the prerequisites are satisfied, we remand for

an award of benefits. Id. at 1 018–21. The only ex ception to the rule is where the record “as a whole” raises “serious doubt

a s t o w hether the claimant is, in fact, disabled within the meaning of the Social Security Act.” See id. at 1021.B U R R E L L V

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V I N 19

The majority invokes the ex c eption, but without a record
to support it. The majority point s t o two relatively v ag ue perceived inconsistenc i es : f irst, that the medical record concerning Claimant’s a b i l i t y to k nit conflicted with her testimony at the hearing t h a t s h e could no long er knit; a nd second, that the record sug g ests the h eadaches Claimant continued to complai n o f 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 r e c o rd as a whole r eflects a prog ressive decline in Claimant’s h and function that is consistent with her testimony
at the heari ng that she could n o long er knit. I n J u ly 2008, Claimant reported knitting

, sewing

, and doi n g lacework for several hours a day before h er surg ery , but the medical records show that her hand function deteriorated after the March 2 009 procedure. I n J uly 2009, Claimant told her phy sical therapist she could do some sewing a nd knitting

, but reported that she was down from knitting 500 stitches to 250. I n September 2 009, Claimant reported she was able to knit only 150–20 0 s t i t ches at a time. I n November 2009, Claimant stopped p hy sical therapy

, w ith the therapist noting that her hand function was n o long er i m p r oving with
tr e atment. At her hearing in December 2009, Claimant testified she “attempted to do the thing s that have alway s broug ht pleasure to me, like my s[ e] wing

, my k n itting

, my crocheting

, my lace-making

, and I am incapable of doing those thing s at this point.” Claimant’s hear i n g testimony is consistent with her reports o f an over all prog ressive decline in her hand condition after surg ery

.

Claimant’s testimony reg a r ding her ability to k nit is no

more inconsistent with the medical record than her testimonyB U R R E L L V

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V I N 20

reg arding her difficulties vacuuming

, whi c h the majority rejects as a reason for finding Claimant’s t e s t i m ony not credible. See Ma

j

. Op. at 8–9. The majority correctly ob serves that the p h y sical therapy reports, stating Claimant

c o u l d p ush a vacuum and was limited only “a little” i n h e r ability to vacuum, were c o n sistent with her later h earing testimony that she had tro u b l e v acuuming “at this point.” The majority should have re c og niz e d a prog ressive decline with respect to knitting as well.

Moreover, both knitting and vacuuming pertain to daily home activities that provide a questionable b asis for discrediting p ain tes t i m o n y in any event. See Garrison
, 759 F .3d a t 1016. As we said in Garrison
, “[ w ] e have repeatedly w arned that AL J s must be especia l l y c autious in concluding that daily acti v i t ies are inconsistent with testimony a

bout pain, because impairments that would unquestionably preclude work and all t h e pressures of a workplace environment will often be co n s istent with doing more than merely

resting in bed all day .” Id.

As for the hea d a c h e s , the majority recog niz es that the AL J erred in the finding that Claimant did not seek consistent
treatment for her headaches after October 2008. Contrary to the AL J ’s f

inding

, there are at least six reports in the record of Claimant seeking h eadache treatment after that date. There is no medical opinion that the headaches should h ave disappeared after surg ery

. The most we have is a doctor’s report speculating that Claim a n t’s headaches were probably related t o h e r n eck issues on account of tension the latter produced. Yet Claimant’s record of treatment for continuing headaches af

t e r surg ery belies that speculation. Her testimony that her headaches continued after surg ery e v en thoug h the neck pain improved w a s consistent with theB U R R E L L V

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V I N 21

medical record. T hat testimony should no t b e considered undermined by

a doctor’s g

uesswork.

I would therefore follow the g e neral rule as laid down in Gar r i s o n and remand the case f or a n award of benefits. I nstead, the majority req uires Claimant to endure another round o f administrative h earing s to consider a condition that came into ex istence seven y ears ag o

. According ly

, while I ag r ee with much o f the majority ’s reasoning

, I must respectfu l l y dissent from its bottom line. The Claimant should be awarded benefits now.