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

K I M B R O W N -H U N T E R , Plaintiff-Appellant
,

v

.

C A R O L Y N W

. C O L

V I N , Commissioner of Social Security
,

Defendant-Appellee

. N o. 13-15213

D.C. No. 2:11-cv-02573- F J M

OPI NI ON

A ppeal from the United States District Court for the District of Ariz o na F rederick J . Martone, Senior District J udg e, Presiding

Arg ued and Submitted March 13, 2015—San F rancisco, California

F iled Aug ust 4, 2015

B e fore: J . Clifford W allace, Milan D. Smith, J r., and Paul J . W atford, Circuit J udg es.
Opinion by

J udg e W allaceB R O W N -H U N T E R V

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V I N 2

SUMMARY *

Social Security

The panel vacated the district court’s judg ment affirming
t h e S o c ial Security Administrative L aw J udg e’s denial o f a claimant’s application for Social Security disability benefits, and remanded with instructions to remand the case to the AL J for further proceeding s.

W h en an AL J determines that a claimant f o r Social Securit y b enefits is not maling ering and has provided objective medical e v i dence of an underlying impairment which mig ht r easonably produce the pain or other sy mptoms she alleg ed, the AL J may reject the c l a i m a nt’s testimony about the severity of those sy mptoms onl y b y providing specific, clear, and convincing r easons for doing so.

The panel held that the AL J
, w ho found g enerally that the claimant’s testimony was not credible, erred b y failing to identify w h i c h part of the claimant’s testimony w as not credible and why

. The panel h e l d t h at an AL J does not provide the specifi c , c lear, and convincing reasons for rejecting a claimant’s t estimony b y simply reciting the medical evidence in support of his or her residual functional capacity determination. The panel held that the AL J m u s t specify which tes t i m ony she finds not credible, and then provide clear and c onvincing evidence, supported b y evidence in the reco rd, to support that credibility d etermination. The panel n oted that the inconsistencie s

* 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 R O W N -H U N T E R V

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V I N 3

identified independently by the d istrict court cannot provide the basis upon which to affirm the AL J ’s decision. The panel held that the AL J ’ s e r ror was not harmless because it prevented the panel from conducting a meaning ful review o f the AL J ’s reasoning

.

The panel concluded that critical factual issues remained unresolved, and that furthe r p r oceeding s would be useful. The panel, according ly
, instructed the d istrict court to remand
to the A L J f

or f urther p ro c e e d i n g s rather than f o r an immediate award of benefits.

COUNSEL

Eric G. Slepian (arg

ued), Phoenix
, Ariz ona, for P l a i ntiffAppellant.

J e s s i c a Milano (arg

ued) a nd Matthew M. L inton, Special Assistant United States Attorney s, and J ohn J ay L ee, Reg ional Chief Counsel, Reg ion VI I I
, Soc i a l Security Administration Office o f the Genera l Counsel, Denver, Colorado; J ohn S. L eonardo, United States Attorney
, Michael J ohns, Assistant United States Attorney
, D enver, Colorado, for Defendant-Appellee.B R O W N -H U N T E R V

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OP INION

W A L L ACE, Senior Circuit J udg e:

W h en an Administrative L a w J udg e (AL J ) determines that a claimant for Social Security benefits is not maling ering and has provided objective medical evidence of an underly ing impairment which mig ht reasonably produce the pain or other
sy mptoms she alleg e s, the A L J may r e ject the claimant’s testimony about the severity of those sy mptoms only b y providi n g s p ecific, clear, and convincing reasons for doing

so. W e h old that an AL J d oes n ot p rovide specific, clear, a nd convincing reasons for rejecting a claimant’s testimony b y simply reciting the medical e vidence in support of his or her residual f unctional capacity determination. To ensure that our review of the AL J ’s credibility determination is meaning ful, and that the claima n t ’ s testimony is not rejected a rbitrarily
, we require the AL J to specify which testimony

she finds not credible, and then provide clear and convincing reasons, supported by evidence i n the record, to support that credibility

determination.

Here, the AL J found g en e rally that the claimant’s testimony w as not credible, but failed to identify whi c h testimony she found not credible an d why

. W e conclude, therefore, that the AL J committed leg al error. This error was not harmless because it precludes us from conduct i ng a

me a ning f ul review of the AL J ’ s reasoning

. W e therefore
vacate the d i strict court’s judg ment a ffirming the AL J ’s denial of benefits. B ecause we conclud e that critical f actual issues remain unresolved, and that further proceeding s will be useful, we instruct the district court to r emand this case to the AL J for f urther proceedin gs rather than for an immediate award of benefits.B R O W N -H U N T E R V

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I

.

Kim B rown-Hunter a

pplied for Social Security d isability benefits and supplemental security income on April 29, 2009. After the Social Security Administration denied her c l a i ms initially and ag ain on reconsideration, B rown-Hunter timely requested and was g

ranted a hearing

before an AL J

.

A.

At the hearing
, B rown-Hunter provided medical evidence that she suffered from o besity
, peripheral neuropathy
, lumbar deg en e r a tive disc disease, diabetes mellitus, mig raine headache s , h y

pothy roidism, hy

pertension, a

nd a sthma. B rown-Hunter told the AL J that until 2003 she had worked a s

a certified nu rsing assistant, but had to stop working because she “could no long e r lift the p atients or g e t them out of b ed o r in bed.” She testified that she looked for o t h er work until about 2005, when “it just g ot to the point wher e [ s he] couldn’t sit up or stand up or walk a distance.”

B r own-Hunter nex t described her then-current functional limitations. She testified that she c ould not drive l ong distances, that she could lift only a bout ten pounds, and that she was able to s i t o n l y f o r about an hour and to stand only for about forty -five m i n u t es. She described her day time routine as “sit[ ting ] in the g a rag e for a couple hours,” which

was often interrupted b y the n eed to lie down “like four o r five times for about thirty minutes” because h er “feet and

. . . leg s [would] swell up w hen [ she was] o n them too much.” I n t he evening s, she stated she would talk, visit, an d w a t c h television with her son and daug hter, and that if she needed something from the store, her daug hte r w o u l d g et it f or her. W h en the AL J asked about h er a b ility to d o housework,B R O W N -H U N T E R V

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B rown-Hunter stated that she was a b le to “pick u

p some, but [ was] not able to sweep any more or mop or vacuum or bend down for the dishwasher.”

B r own-Hunter told the AL J that her functional limitations

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

swe l l i n g in her lower ex tremities. W hen the AL J asked if
any thi n g alleviated this pain and swelling
, B rown-Hunter replied that elevating her fe e t , as prescribed by her doctors, helped w ith the leg and feet pain, but that “[ w] ith my back I have to l[ ie] down.” B rown-Hunter stated that to control the pain and swelling effectively
, she needed t o elevate her feet
t w i c e a we e k for thirty minutes to a n hour, and to lie down three to four times a day for thirty minutes to an hour. B rownHunter also provided e vidence that s he was taking roug hly twenty medications, including strong pain medications, such

as ox y codone.

After B rown-Hunter conc l uded her testimony
, the AL J turned to the vocational ex pert. The A L J asked the vocational

ex p ert a series of hy

pothetical question s to identify the occupations that ex isted in sig nificant numbers in the n ational
economy that an individual could perform, assuming such an individual h a d B rown-Hunter’s same ag e, education, past work ex perience, and functional limitations.

The AL J beg an by asking t h e vocational ex pert which occupations would be available to such individual “limited to

a rang e o f lig ht work as

. . . defi n e d u n d e r the reg ulations,” but with t h e ability to do “no more than occasional pushing and pulling with the up p e r a nd lower ex tremities.” The vocational ex pert identified a handful of possible jobs, including “ lig ht j a n i torial or lig ht office cleaning ,” and an unskilled, lig ht “[ a] sse m b l y position.” W hen the AL J askedB R O W N -H U N T E R V

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how his t estimony w ould chang e if that hy pothetical was modified “to a dd

. . . that the individual would be off task 15
to 20 percent of the work day ,” the v ocational ex pert replied that such individual “would not be a ble to sustain the work.”

T h e A L J then allowed B rown-Hunter’s counsel t o question the v ocational ex p ert. A s relevant here, counsel asked t h e v o cational ex p ert to assume an individual with lower ex tremity swelling who needed to elevate her feet thirty minutes to one hour twice a week:

Q: I f we were to assume those limitations, would such an in d i v i dual be a ble to perform Claimant’s past work?

A: No.

Q: W ould there b e any o t h e r job they could sustain?

A: Not likely

.

. . .
Q: And if an indi vidual needed to rest or lie down

. . . two or thre e t i m e s a d ay for thirty minutes at a time,

. . . and it was u nscheduled, would that preclude such a n individual f

rom performing

Claimant’s past work?

A: Yes.

Q: W ould it allow for any other jobs?B R O W N -H U N T E R V

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A: No.

Shortly after this testimony the hearing

concluded.

B

.

Several weeks lat er, the AL J issued a written decision deny ing B rown-Hunter’s claims. F o llowing the Social Security Act’s five-step p rocedure for determining disability
, see 20 C.F .R. § 416.920(a)(4), the AL J concluded at step o ne that B rown-Hunt e r h a d not e ng ag ed in substantial g a inful

ac t i v i ty since the date of the alleg ed onset. At step two, the AL J concluded that B rown-Hunter suffered from the “severe” impairments o f “obesity
, peripheral neuropathy
, lumbar deg enerative disc disease (DDD), diabetes mellitus (DM), and mig raine headaches.” Howev e r , at step three, the AL J concluded that those impairments did not—either in isolation

or in combination—meet or equal a “listed” impairment. See 20 C.F .R. § 404, Subpart P, App’x 1. This conclusion required the A L J to then determine B rown-Hunter’s Residual F unctional Capacity

(RF C) in preparation for step four.

The A L J beg an her d iscussion of the RF C with her conclusion that B rown-Hunter had the RF C “to perform lig ht work

. . . ex cept she can perform no more th a n o c casional pushing and pulling w ith the upp er a nd lower ex tremities.” The AL J then acknowledg ed her duty to “evaluate the intensity
, persistence, and limiting effects of the claimant’s
sy mptoms to d e termine the ex tent to which they limit the claimant’s f

unctioning ,” and, where appropriate, to “make a finding on the credibility of the statements ba s e d o n a consideration of the entire case record.” She went on to p a r a p h r a s e Br o w n

- H u n ter’s testimony reg arding t h e chronolog y of her back pain, followed b y a summary o f t h eB R O W N -H U N T E R V

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treatments and prescriptions for that pai n, the sy mptoms pertaining t o B rown-Hunter’s diabetic peripheral neuropathy
, as well as B rown-Hunter’s heig ht, weig ht, smoking habits, and ability “to d

rive short distances, sit for one hour and stand for 45 minutes.”

F ollowing that summary , the AL J concl u d e d t h a t a l thoug h B rown-Hunter’s “medically determinable impairments could reasonably be e x pected to cause some of the alleg ed
sy mptoms,” h er “ s t a tements concerning the intensity
, persistence and limiting effects of these sy mpt o m s a

re not cred i b l e to the ex tent they a re inconsistent with the above residual functional capacity assessment.”

F inally
, after d evoting the nex t e ig ht parag raphs to summariz ing the medical evi d ence in the record, the AL J stated:

After c a r e ful consideration of the entire record
, including the medical evidence a nd the testimony at the hearing
, I find the functional limitations resulting from the claimant’s impairments were less serious than she h a s alleg ed.

. . . [ W hile] the medical evidence supports a finding t h at the claimant’s impairments

. . . impos[ e] some restric t ions, [they ] did not prevent her f rom eng ag ing in all work related activities.

Consequently
, the AL J proceeded to step four a nd concluded that B rown-Hunter’s limited RF C precl u ded her from p erforming any past relevant work. B ut at step five, the AL J d etermined that, considering B rown-Hunter’s RF C, a g e , education, and work ex p erien c e, she was able to do otherB R O W N -H U N T E R V

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work that ex isted in sig nificant numbers i n the n ational
economy

. Citing the vocational ex pert’s test imony that a h y p othetical individual w ith the “same ag e, education, a n d
pa s t r elevant work ex p erience” as B rown-Hunter could perform o ccupations such as “lig ht janitorial” a nd “assembly
, ” the AL J concluded th a t B rown Hunter w as not disabled under the Social Security Act.

C.

The AL J ’s decisio n became f inal when the Social Security Appeals Council denied r eview. B rown-Hunter then

a p p e a l e d from the AL J ’s decision to the district court. She
arg ued that t h e AL J e r

red by “fail[ ing ] to provide clear a nd convincing r easons for reje c ting her sy mptom testimony

. ” The district court rejected her arg ument, holding t h at “the AL J g ave c lear and convincing rea s o n s to support [her] determination that [ B rown-Hunter’s] ‘ impairments were less serious than she has alleg ed.’” The d istrict court pieced tog ether medical evidence identified by the AL J that it f ound inconsistent with “an alleg ation of e x c ess pain,” and stated therefore that the AL J “ identified s e veral inconsistencies between [ B rown-Hunter’s] testimony and the record,” a nd “g ave c lear a

nd convincing reasons to s u p p ort [her] determinations that [ B rown-Hunter’s] impairments were less serious than she has alleg ed.’” T h e d istrict court affirmed the AL J ’s decision, a

nd B rown-Hunte r t i mely filed this appeal,

over which we have jurisdicti o n pursuant to 28 U .S.C. § 1291.

I I

.

W e re v i ew de novo a district court’s order affirming an A L J ’s denial of Social Security benefits. Hill v. Ast r u e ,B R O W N -H U N T E R V

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698 F .3d 1153, 1158 (9th Cir. 2012). O n de novo r eview, we must bear in mind tha t a f e d e ral c ourt’s r eview of Social Security determinations is quit e l imited. “F or hig hly factintensive individualiz e d determinations like a claimant’s
ent i tlement to disability benefits, Cong ress ‘places a premium
upon a g ency ex pertise, an d
, for the sake of uniformity
, it is

usu ally better to minimiz e the opportunity for reviewing
courts t o substitute their discretion f or that of the ag ency .’” Treichler v. Comm’r of Soc. Sec. Admin.
, 775 F

. 3 d 1 0 9 0
, 1098 (9th Cir. 2014), quoting Consolo v. Fed. Mar. Comm’n
, 383 U.S. 607, 621 (1966). To ensure that we adh ere to this principle, w e follow three important rules i n our analy sis o f the AL J ’s decision.

The f irst is that “ w e leave it to the AL J to determine

cr e d i b i lity
, resolve c onflicts in the testimony
, and resolve ambig uities in the record.” Treichler , 775 F .3d at 1098. The second is that we will “disturb the Commissioner’s decision
to deny benefits ‘only if it is not supported b y s u b stantial evidence or is based on leg al error.’” Id.
, quoting Andrews v

. Shalala
, 53 F .3d 1035, 1039 (9th Cir. 1995). The third is that “[ e ] v en w hen the AL J commits leg al error, we uphold the decision where that error is h a r m l e ss,” meaning that “it is inconsequential to the ultimate nondisability determination,”

o r that, despite the leg al error, “the ag ency ’s path may reasonably be discerned, even if the ag ency ex p lains its decision with less than ideal clarity .” 775 F .3d a t 1099 (internal quotation marks and citations omitted).

That said, “ our precedents have been cautious about when harmless error should be fo u n d.” M arsh v. Colvin
, ___ F .3d

___, No. 12-17014, 2015 W L 4153858, *2 (9th Cir. J une 18, 2015). Ever mindful of our duty not to substitute ou r o wn discretion for that of the ag e ncy , we have emphasiz ed thatB R O W N -H U N T E R V

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“the d ecision on disability r e s t s w ith the AL J a nd the Commissioner of the S ocial Security Administration in the first i n s t a nce, not with a district court.” Id. at *3. Thus, althoug h we will not fault t h e ag ency merely for ex plaining its decision w ith “less than ideal clarity ,” Treichler
, 775 F .3d
at 1099 ( citation and i n t ernal q uotation marks omitted), we still demand that the a g ency set forth the reasoning b ehind its decisions in a way that a llows f or meaning ful review. A clear
statement o f the ag e ncy ’s r easoning is necessary because we

can affirm the ag ency ’s decision to deny benefits only on the
g rounds invoked by the ag ency

. S tout v. Comm’r, Soc. Sec. Admin. , 454 F .3d 1050, 1054 (9th Cir. 2006).

A r eviewi n g court may not make independent finding s based on the e vidence before the AL J to conclude that the AL J ’s error was harmless. Id

. ; s e e also Marsh
, 2015 W L 4153858, * 2 (a district court may not find harmless error b y “affirm[ ing ] the ag ency on a g round n ot i n voked by the AL J ”). Rather, “[ w] e are constrained to review the reasons the AL J asserts.” Connett v

. B arnhart
, 340 F .3d 871, 874 (9th Cir. 2 003). I f the AL J fails to specify his o r h e r r e asons for finding claimant testimony not credi b l e , a reviewing court will be u nable to review those reasons meaning fully without improperly “substitut[ i n g] our conclusions for the AL J ’s, o r speculat[ ing ] as to the gr o u nds for the AL J ’ s conclusions.” Trei c h l e r , 775 F .3d at 1103. B ecause we cannot eng ag e in such substitution or speculatio n , such error will never be harmless.

I I I

.

W h ere, as here, an AL J concludes that a claimant is n o t maling ering
, and that she h as provided objective medical evidence of an under l y i n g impairment which mig htB R O W N -H U N T E R V

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reasonably produce the pain or other sy mptoms alleg e d, th e AL J may “reject the claimant’s testimony about the severity of her sy

mptoms only by offering specific, c l e a r a nd convincing reasons for d o i n g so.” Lingenfelter v. Astrue
, 504 F .3d 1028, 1036 (9th Cir. 2007) (citation and int ernal
q u o t a tion marks omitted). The Commissioner disputes that standard of review. Rely ing p rimarily on Bunnell v. Sullivan
, 947 F .2d 341 (9th Cir. 1991), the Commissioner arg ues that althoug h the c ourt reviews the AL J ’s c re d ibility finding for adequate specificity
, “clear and convincing ” reasons are not required. W e recently rejected this arg ument in B u rrell v

. Colvin
, 775 F .3d 1133, 1136–37 (9th Cir. 2014) (holding that the “clear and convin c ing ” requirement actually predated Bunnell and w as n o t “ e x cised” by it). Burrell therefore forecloses the Commissioner’s arg ument.

A finding that a claimant’s testimon y i s not credible “must b e sufficiently specific to allow a reviewing court to conclude the adjudicator rejected the claimant’s testimony on permissible g rounds and did not arbitrarily discredit a claimant’s testimony reg arding pain.” Bunnell
, 947 F .2d at 34 5 –46 (citation and internal quotation marks omitted). “General finding s a

re insufficient; rather, the AL J must identify w hat testimony is n ot credible and what evidence undermines the c laimant’s complaints.” Reddi c k v. Chater
, 157 F.3d 715, 722 (9th Cir. 1998) (citation and internal quotati o n m a rks omitted). See also Holohan v. Massanari
, 246 F

. 3d 1 195, 1208 (9 t h Cir. 2001) (“the AL J must specifically identify the testimony she or he finds not to be credible and mus t explain what evidence u ndermines the testimony ” (emphasis added)). The g overning Social Security rul i n g s, w hich “are binding on all components of the Social S ec u r i t y Administration,

. . . and are to be relied upon as precedents in adjudicati n g c a ses,” Orn v. Astrue
, 495 F .3dB R O W N -H U N T E R V

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625, 636 (9th Cir. 2007), quoting 67 F ed. Reg

. at 5 7860, are clear on this point:

it is n ot sufficient for the adjudicator to make

a sing le, conclusory statement that ‘the individual’s alleg atio n s h a v e b e e n considered’

or that ‘the a lleg ations are [ not] c redible.’

. . . The determination

. . . mus t c ontain specific

reasons for the f

inding on credibility
, supported by the evidence in the case record, and must be sufficiently specific to make clear
to

. . . a n y subsequent reviewers the w eig ht the adjudicator g av e to the individual’s statements and the reasons for that weig ht.

Social Security Ruling 96-7P, 1 996 WL 374186 at * 2 (J u ly 2, 1996) (emphasis added).

F ollowing these principles in Treichler
, f or ex ample, we held that the AL J erred by making only a “ s ing le g eneral
statement that ‘the claimant’s statements con c e r ning the intensity
, persistence and limiting effects of these sy mptoms

are not credible to the ex t e n t t hey are inconsistent with the above residual functional capacity a ssessment,’” without identify ing “ sufficiently specific reasons” for r ejecting the testimony
, supported by evidence in the c ase record. 775 F .3d
at 1102–03. The A L J here made the identical concl u s ory statement a

nd likewise failed to identify specifically w hich o f B rown-Hunter’s statements she found not credible and why

. I nstead, the AL J stated only that she found, ba s e d o n unspecified c laimant testimony and a summary of m edical evidence, that “the functional limitations from the claimant’s impairments were less serious than she has alleg ed.”B R O W N -H U N T E R V

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W e disag ree w ith t he district court that the AL J “identified s e v e r a l i n c o n s i s t e n c i e s b e t w e en [ B rown-Hunter’s] testimony and the record,” and therefore “ g ave cl e ar a nd convincing r e a s o n s t o s u p p o r t ” her non-credibility determination. Our review o f the AL J ’s written decision reveals that she did not specifi c ally identify any such inconsistencies; s h e simply stated her non-credibility conclusion and then summariz e d th e m edical evidence supporting her RF C determina t i o n

. T his is not the sort o f

ex p lanation or the kind of “specific r easons” we must have in order to review the AL J ’s decision meaning f ully
, so that we may e nsure that the cl a i m ant’s testimony was not arbitrarily d i s credited. Althoug h the inconsistencies identified b y the district court could be reasonable inferences drawn from the AL J ’s summary o f the evidence, the credibility determination is ex c lusively the AL J ’s to make, and ours only to review. A s

we have long held, “[ W ]e are c ons trained to review the

reasons the ALJ asserts.” Connett v

. Barnhart
, 340 F

. 3d 871, 8 74 (9th Cir. 2003) (emphasis added). Thus, t h e inconsistencies identified independently by the district court cannot provide the basis upon which we can affirm the AL J ’s decision.

I ndeed, “[ o] ur decisions make c lear that we may not take

a g eneral finding —an u nspecified conflict b etween Claimant’s testimony

. . . and her reports to d o c t ors—and comb the a dministr a tive r e c ord to f ind specific conflicts.” Burrell
, 775 F

. 3d at 1138. B ecause the AL J f ailed to identify the testimon y she f

ound not c redible, she did not link that testimony to the particular parts of the record supporting her non-credibility determination. T h is w as leg al error. See id. at 1139 ( holding that the A L J committed leg al e rror because he “never connected the medical record to Claimant’s
t e s timony ” nor made “a specific finding linking a lac k o fB R O W N -H U N T E R V

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medical records to Claimant’s testimony about the intensity of h er

. . . pain” (emphasis a dded)). Even if the district court’s analy sis was sound, it could not overcome the error of t h e AL J

. T hat is
, t h e error could not be corrected by the district court’s statement of lin k s b e tween claimant testimony a nd certain medical evidence.

Nor was that error harmless. An error is harmless only if it is “ i nconsequential to the ultimate nondisibility determination,” Molina v. Astrue
, 674 F .3d 1104, 1115 (9th Cir. 2012) (citation and internal quotation marks omitted), o r if despite the leg al error, “the ag ency ’ s p a th may reasonably be discerned,” Treich l e r , 775 F .3d at 1099 (citation a nd internal quo t ation marks omitted). B ut here, we cannot discern the ag ency ’ s p ath because the AL J made only a g eneral credibility finding w ithout providing any reviewable

reasons w hy she found B rown-Hunte r ’ s testimony to be not credible. See id. at 1103. Althoug h t h e A L J summariz e d a sig nificant portion of the administrative record in support o f her RF C de t e rmination, providing a summary of medical evidence in support of a residual f unctional capacity

finding is not the same as providing clear and convincing reasons for finding the claimant’s sy

mptom testimony n o t credible. W e reject the Com m issioner’s arg ument, also rejected in Treichler
, that b e c ause t h e A L J “set out his RF C a nd

summ a r iz ed the evidence supporting his determination” we

can infer “that the AL J r ejected [ petitioner’s] testimony to the

ex tent it c onflicted with that medical evidence.” I d. W e cannot review whether the AL J provided specific, c lear, and convincing r easons for rejec t i n g B rown-Hunter’s p ain testimony where, as h e r e, the AL J n ever identified which testimony she found not credible, and never ex plained which evidence contradicted tha t t estimony

. Burrell
, 775 F .3d at 1138. This “falls short o f meeting the AL J ’s responsibility toB R O W N -H U N T E R V

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provide

. . . ‘the reason or reasons u pon which’ [ her] adverse determination is based.” Treichler
, 775 F .3d at 1103, quoting 42 U.S.C. § 405(b)(1).

I n sum, “we cannot substitute o ur c o n c lusions for the AL J ’s, o r s p e c ulate as to the g rounds for the AL J ’s conclusions. Althoug h the AL J ’s ana l y s i s n e ed not be

ex tensive, the A L J must provide some reasoning in order for

us to meaning fully determine whether the AL J ’s conclusions

were supported by substantial e v i d e nce.” 775 F .3d at 1103 (internal citation omitted). The AL J provided n o such reasoning here. “B ecause ‘ the a g en c y ’ s path’ cannot ‘reasonably be discerned,’ A laska D ep’t of Envtl. Conserv. [v. EPA]
, 540 U.S. [ 4 6 1
, ] 497 [ ( 2004)]
, we must reverse the district court’s deci s i o n to the e x tent it affirmed the AL J ’s credibility

determination.” 775 F .3d at 1099.

I V.

B r own-Hunter arg ues that in lig h t of the AL J ’s error, we must credit h er testimony as true and remand to the district
court with ins t r u ct i o ns to remand to the ag ency for an immediate award of be n e fits. A remand for an immediate award o f benefits is appropriate, h owever, only in “ra re circumstances.” Id. B efore ordering that ex treme remedy
, we must f irst satisfy ourselves that three requirements have been
met.

Fi r s t, we must conclude that “ the AL J has failed to provide leg ally sufficient r e a sons for rejecting evidence, whether claimant testimony o r medical opinion.” Garrison v

. Colvin , 759 F .3d 995, 1020 (9th Cir. 2014).B R O W N -H U N T E R V

. C O L

V I N 18

Second, we must conclude that “the record has been f ully developed and further administrative proceeding s would

serve n o useful p u rpose.” Id. This requirement w ill n ot be satisfied if “the record raises crucial q uestions a s to the ex tent of [ a c laimant’s] impairment g iven inconsistencies be t ween his testimony and the medical evidence in the record,” because “[ t] hese are ex actly the sort of issues that should be remanded to the a ge n c y for f urther p roceeding s.” Treichler
, 775 F .3d a t 1 1 05. I mportantly
, we are “to assess whether there are ou tstanding issues requiring resolution before considering whether to hold t h at the claimant’s testimony is credible as a matter of law.” Id. This is because “ a reviewing
court is not required to c redit claimants’ a lleg ations reg arding the ex tent of their impairments as true mere l y because the AL J made a leg al error in discrediting their testimony .” Id. at 1106. The touchstone f

or an a ward of benefits is the ex istence of a disability
, no t t he ag ency ’ s leg al e r ror. To condition an

a w a rd of benefits only on the ex istence of leg al error b y the AL J would in many c ases make “ ‘disabili t y b e n e fits

. . . available for the asking
, a result plainly contrary to 42 U .S.C. § 423(d)(5)(A).’” Id.
, quoting Fair v. B o w en , 8 85 F .2d 597, 603 (9th Cir. 1989).

Third, we must conclude that “if the improperly discredited evidence were credited as true, the A L J would be required to find the claimant disabled on remand.” Garrison
, 759 F .3d at 1021.

F inally
, even if all three r e q u irements are met, w e retain “flex ibil i t y ” in determining the appropriate remedy

. Id. W e may remand on an o pen record for further proceeding s “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.B R O W N -H U N T E R V

. C O L

V I N 19

Here, althoug h we conclude that the AL J committed leg al

error by failing to s p e c i f y w hich testimony she found not credible a

nd why
, w e will not r emand for an immediate

aw ard of benefits because we are not satisfied that “further administrative proceeding s would serve no useful p urp o se.” Id. at 1020. I ndeed, the record raises crucial questions about the ex tent to w hich B rown-Hunter’s pain and accompany ing
sy mptoms render her disa b led. B rown-Hunter’s testimony that h er back and leg pain are relieved only by l y i n g d o wn four to five t i m e s a d ay for thirty minutes each, and b y elevating her leg s twice a week for thirty minutes to an hour each, appears dispositive to the ultim a t e d isability determination in lig ht of the vocational ex pert’s h earing testimony

. I ndeed, when a sked hy pothetically if a person w ho

was r equired to b e “off task approx imately 15 to 20 pe r c e nt of t h e w orkday ” would b e able to sustain the specified lig ht work, the v o cational ex pert testified that he or she “ would not.” W h en asked w hether “an individual [ who] needed to rest or lie down

. . . two or three times a d ay for thirty minutes
at a time” on an unpredictable schedule wo u l d b e able to sustain “any o ther jobs,” the vocational ex pert testified, “No.” And even when the A L J reduced the hy pothetical frequency of feet-elevation to only twice a week, the vocational ex pert ag ain confirmed that such a n individual “ wouldn’t b e able to sustain [ lig h t work] . No.”

B u t B rown-Hunter’s need to lie down and to elevate her feet with such frequency is conting ent on the assumption that her pain is in fact d ebilitating an d that no other a lternative
treatment besides ly ing down adequately alleviates that pain. However, “the record raises crucial questions” on these issues “g iven [ the] inconsistencies b etween [ her] testimony and the medical evidence in the record.” Treichler
, 775 F .3d at 1105. F or ex ample, Dr. Massrour’s J u n e 2010 assessment appearsB R O W N -H U N T E R V

. C O L

V I N 20

to undermine B rown-Hunter’s alleg ation th a t s he had zero residual functional capacity due t o d e b ilitating lower back pain. D r. Massrour found that h e r p a in averag ed a 5 on a 10 point scale, that she “den i e d prog r essive neurolog ical deficits, focal weakness, [ and] dense numbness,” and that she was “independent with [ her activities of daily living ] .” The record also sug g ests that h er p ain was adequately controll ed w i th medication. F or ex ample, the records o f her monthly visits to the Phoenix Pain Manag ement Center indicate that the p ain medications she w as taking provided “adequate pain control” and that her “[ f] unctionability on [ t] reatment” was improving with treatment, as evidenced by numbers of 6 t o 8 o n a 10- point scale, with high e r numbers indicating improvement. Another pain manag ement report on May 8, 2009, states that B rown-Hunter reported “adequate” pain control, and that she was “able to function well.”

Althoug h medical reports of adequate pain control on

m e d ication do not foreclose the possibility that B r own

- H u n t e r still n eeds to lie down as often a n d as un p r e dictably a s she alleg ed, they do create a sig nificant fa ct u a l c onflict in the record that should be r esolved throug h f urther proceeding s on

an open record before a proper d i s ability determination can be made by the A L J in the f irst instance. See Treichle r , 775 F

. 3d at 1106–07; Burrell
, 775 F .3d at 1141–42. “W here there is conflicting evidence, and not all essential f actual issues have been resolved, a remand for an award of benefits is inappropriate.” Treichler
, 775 F .3d at 1101. W e therefore
vacate the judg ment of the district court and re m a n d with instructions to remand to the ag ency for further pro c eeding s on an open record.

VACATED AND REMANDED.