FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRENDA M. DIEDRICH,

Plaintiff-Appellant,

v.

NANCY A. BERRYHILL, Acting

Commissioner Social Security,

Defendant-Appellee.

No. 14-36070

D.C. No.

6:13-cv-01501-

CL

OPINION

Appeal from the United States District Court

for the District of Oregon

Owen M. Panner, Senior District Judge, Presiding

Argued and Submitted June 5, 2017

Portland, Oregon

Filed October 26, 2017

Before: A. Wallace Tashima, Ronald M. Gould,

and Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Gould;

Dissent by Judge Rawlinson
2 DIEDRICH V. BERRYHILL

SUMMARY*

Social Security

The panel affirmed in part, and reversed in part, the 

district court’s order affirming the Commissioner of Social 

Security’s denial of claimant’s application for Social 

Security Disability Insurance (“SSDI”) benefits under Title 

II of the Social Security Act.

Unlike Supplemental Security Income benefits under 

Title XVI of the Social Security Act, SSDI benefits are 

limited to a certain period of insurance determined by the 

amount of claimant’s previously taxed earnings. The 

Commissioner determined that claimant had become 

disabled but an administrative law judge (“ALJ”) found that 

her disability did not begin during the period in which she 

was insured for SSDI benefits. 

The panel held that the ALJ erred by not calling a 

medical advisor at the hearing, by giving too little weight to 

the observations of claimant’s fiancé, and by finding that 

claimant was only partially credible. Specifically, the panel 

held that pursuant to Social Security Ruling 83-20, the 

Commissioner erred by not calling a medical advisor at the 

hearing to help determine the precise onset date of 

claimant’s disability under the circumstances – namely, 

there were large gaps in the medical records documenting a 

slowly progressive impairment, and an ALJ’s assessment of 

the disability onset date would be mere speculation without 

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

has been prepared by court staff for the convenience of the reader.
DIEDRICH V. BERRYHILL 3

the aid of a medical expert. Concerning the ALJ’s finding 

that claimant’s fiancé’s observations merited “little weight,” 

the panel held that none of the ALJ’s three reasons for 

discounting the observations were germane. Concerning the 

ALJ’s finding that claimant was only a “partially credible 

witness,” the panel held none of the ALJ’s given reasons –

that reports by an orthopedist and therapist did not mention 

mental health symptoms, that there were no observations of 

claimant’s different personalities, and that claimant’s daily 

activities involved a wide range of activities – was clear and 

convincing.

The panel concluded that none of the ALJ’s errors were 

harmless. The panel remanded for further proceedings with 

instructions that the ALJ’s decision be vacated, and that the 

district court remand to the ALJ with instructions that the 

ALJ should call a medical advisor and proceed in a manner 

consistent with this opinion.

Judge Rawlinson dissented because, applying the 

deferential substantial evidence standard of review, she 

agreed with the magistrate judge and the district court that 

the ALJ’s decision was free of legal error and supported by 

substantial evidence.
4 DIEDRICH V. BERRYHILL

COUNSEL

Max Rae (argued), Salem, Oregon, for Plaintiff-Appellant.

David Burdett (argued) and John C. Lamont, Special 

Assistant United States Attorneys; Adrian Lee Brown, 

Assistant United States Attorney; David Morado, Regional 

Chief Counsel, Region X; Office of the General Counsel, 

Social Security Administration, Seattle, Washington; for 

Defendant-Appellee.

OPINION

GOULD, Circuit Judge:

Brenda M. Diedrich appeals the district court’s order 

affirming the Commissioner of Social Security’s (the 

“Commissioner”) denial of Diedrich’s application for Social 

Security Disability Insurance (“SSDI”) benefits under Title 

II of the Social Security Act. The Commissioner determined 

that Diedrich had become disabled, but an Administrative 

Law Judge (“ALJ”) found that her disability did not begin 

during the period in which she was insured for SSDI 

benefits. We hold that the ALJ erred in its assessment (1) by 

not calling a medical advisor at the hearing; (2) by giving too 

little weight to the observations of Diedrich’s fiancé; and 

(3) by finding that Diedrich was only partially credible. We 

reverse in part on these grounds, and remand. In a separately 

filed memorandum disposition, we reject several other 

challenges Diedrich raises related to the ALJ’s decision, 

affirming in part the ALJ’s decision.
DIEDRICH V. BERRYHILL 5

I

We consider a claimant with a troubled past and serious 

medical conditions. Brenda Diedrich had a rough childhood: 

Her upbringing was marred by drug addiction, sexual and 

emotional abuse from her father, suicide attempts, and a 

marriage at seventeen that resulted in domestic violence. 

Since 2002, Diedrich has been arrested at least six times, and 

has been jailed twice. This background doubtless plays 

some role in her medical conditions.

Diedrich has applied for disability benefits several times. 

At issue in this appeal is her third application, filed on 

August 26, 2009, seeking both SSDI benefits under Title II 

of the Social Security Act and Supplemental Security 

Income (“SSI”) benefits under Title XVI of the act. See 

42 U.S.C. §§ 401 et seq. (Title II), 1381 et seq. (Title XVI).

SSI benefits are based on needs. To be eligible, a 

claimant must be “aged, blind or disabled,” and must have 

income and resources under certain thresholds. See id.

§ 1382(a). In contrast, SSDI benefits are based on earnings. 

The claimant must be disabled, and must have contributed to 

a federal insurance trust fund through deductions in his or 

her wages. See id. § 401(b); see generally Bowen v. 

Galbreath, 485 U.S. 74, 75 (1988). Unlike SSI benefits, 

SSDI benefits are limited to a certain period of insurance. 

The length of this insured period is determined by the 

amount of the claimant’s previously taxed earnings. See 

42 U.S.C. § 423(c)(1). The definition of “disability” for SSI 

benefits is the same as for SSDI benefits. Compare

42 U.S.C. § 423(d)(1)(A) (Title II), with id.

§ 1382c(a)(3)(A) (Title XVI).

On January 29, 2010, a Disability Determination 

Services (“DDS”) psychological consultant concluded that 
6 DIEDRICH V. BERRYHILL

as of the date of Diedrich’s third application, August 26, 

2009, Diedrich was disabled due to bipolar and anxiety 

disorders. This entitled Diedrich to SSI benefits. But 

Diedrich had not been insured for SSDI benefits since June 

30, 2008. Because the psychological consultant concluded 

that Diedrich’s disability began after June 30, 2008, 

Diedrich’s application for SSDI benefits was denied.

Diedrich sought administrative review of this denial of 

SSDI benefits. She argued that the psychological consultant 

determined the wrong onset date of her disability. 

Specifically, she claimed that her disability began not on 

August 26, 2009, but much earlier, on October 1, 2002. 

Diedrich asserted that because her disability began before 

her Title II insurance expired on June 30, 2008, she was 

entitled to SSDI benefits.

On December 14, 2011, an ALJ held a hearing on 

Diedrich’s benefits denial. The relevant evidence at the 

hearing included medical records from several of Diedrich’s 

treating physicians. These records showed that, in addition 

to certain physical conditions, as early as July 2003 Diedrich 

suffered serious mental health symptoms. These symptoms 

included periods of extreme hyperactivity and recklessness, 

volatile moods, weeks-long bouts of depression, 

hallucinations, memory problems, trouble concentrating, 

panic attacks, social anxiety, and blackouts during which 

Diedrich would experience personality changes. At various 

points, Diedrich’s doctors have diagnosed her with bipolar 

disorder, depression, attention deficit disorder, posttraumatic stress disorder, agoraphobia, and split 

personalities, among other conditions.

Diedrich testified at the hearing. She described how her 

mental health symptoms hampered her functioning in daily 

life. Diedrich’s fiancé, David Niebaum, also testified. He 
DIEDRICH V. BERRYHILL 7

explained that he had known Diedrich since the end of 

September 2008 and saw her every day. He described how 

Diedrich would experience manic-depressive cycles and 

take on alternate personalities. Niebaum also submitted a 

third-party function report, in which he explained how

Diedrich’s inability to maintain a routine, mood swings, poor 

memory, trouble concentrating, anxiety, and other 

symptoms left her dependent on him for daily help. A 

vocational expert testified at the hearing as well, but the ALJ 

did not call a medical advisor.

The ALJ denied SSDI benefits for Diedrich. The ALJ 

gave “little weight” to Niebaum’s observations, and found 

that Diedrich was merely a “partially credible witness.” The 

ALJ concluded that Diedrich was “not under a disability . . .

at any time from October 1, 2002, the alleged onset date, 

through June 30, 2008, the date last insured.” Diedrich filed 

this action in the district court, seeking review of the 

Commissioner’s final decision that denied Diedrich SSDI 

benefits. A magistrate judge recommended that the 

Commissioner’s decision be affirmed. The district court 

adopted the Findings and Recommendations of the 

magistrate judge, affirmed the Commissioner’s decision, 

and dismissed the case. Diedrich timely appealed.

II

We have jurisdiction to decide this appeal under 

28 U.S.C. § 1291. We review de novo the district court’s 

decision affirming the Commissioner’s denial of benefits. 

Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th 

Cir. 2006). We may set aside the Commissioner’s benefits

denial if the ALJ committed legal error or reached a decision 

not supported by substantial evidence. Id.
8 DIEDRICH V. BERRYHILL

III

A

Diedrich contends that the ALJ committed legal error by 

not calling a medical advisor at the hearing. She argues that 

a medical advisor was necessary to help the ALJ sift through 

her voluminous medical records and determine the correct

onset date of her disability.

The ALJ is responsible for studying the record and 

resolving any conflicts or ambiguities in it. Treichler v. 

Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 

2014). But in circumstances where the ALJ must determine 

the date of disability onset and medical evidence from the 

relevant time period is unavailable or inadequate, Social 

Security Ruling (“SSR”) 83-20 states that the ALJ should 

call a medical advisor. “Social Security Rulings [] do not 

carry the ‘force of law,’ but they are binding on ALJs 

nonetheless. They reflect the official interpretation of the 

[Social Security Administration] and are entitled to some 

deference as long as they are consistent with the Social 

Security Act and regulations.” Molina v. Astrue, 674 F.3d 

1104, 1113 n.5 (9th Cir. 2012) (internal quotation marks and 

citation omitted).

In relevant part, SSR 83-20 states:

With slowly progressive impairments, it is 

sometimes impossible to obtain medical 

evidence establishing the precise date an 

impairment became disabling. Determining 

the proper onset date is particularly difficult, 

when, for example, the alleged onset and the 

date last worked are far in the past and 

adequate medical records are not available. 
DIEDRICH V. BERRYHILL 9

In such cases, it will be necessary to infer the 

onset date . . . .

. . . .

At the hearing, the [ALJ] should call on the 

services of a medical advisor when onset 

must be inferred.

Relying on SSR 83-20, we have held that where a record is 

lacking and ambiguous as to the onset date of disability, “the 

ALJ must call a medical expert to assist in determining the 

onset date.” Armstrong v. Comm’r of Soc. Sec. Admin., 

160 F.3d 587, 590 (9th Cir. 1998); see also DeLorme v. 

Sullivan, 924 F.2d 841, 848 (9th Cir. 1991) (“In the event 

that the medical evidence is not definite concerning the onset 

date and medical inferences need to be made, SSR 83-20 

requires the administrative law judge to call upon the 

services of a medical advisor and to obtain all evidence 

which is available to make the determination.”); Morgan v. 

Sullivan, 945 F.2d 1079, 1083 (9th Cir.1991) (per curiam) 

(reversing in part an ALJ’s determination of the onset date 

of mental disorders because the ALJ did not receive the 

assistance of a medical advisor).

This requirement makes sense. Sometimes, the onset of 

disabilities occurs all at once, and the date of onset is clear. 

For example, when a claimant is permanently injured in a car 

wreck, there is rarely a dispute over the date of the crash. 

But sometimes conditions build slowly over time. In such 

cases, it helps to have medical expertise to determine when 

the symptoms became severe enough so that the claimant 

became disabled under Title II. See Morgan, 945 F.2d at 

1081.
10 DIEDRICH V. BERRYHILL

Here, the record shows that Diedrich did not see a 

psychologist until years after her alleged onset date; there are 

no mental health records for nearly two years surrounding 

her date last insured, and the next available records 

supported a finding of disability; and she suffered 

inconsistent but increasingly severe symptoms over the 

seven years between her alleged onset date and the disability 

onset date found by the Commissioner. Because “the alleged 

onset and the date last worked are far in the past and 

adequate medical records are not available,” determining the 

precise date on which Diedrich became disabled required an 

informed inference. “Such an inference is not possible 

without the assistance of a medical expert.” Id. at 1083.

The Commissioner relies on Sam v. Astrue to argue that 

SSR 83-20 is inapplicable. 550 F.3d 808 (9th Cir. 2008) (per 

curiam). In Sam, we held “that SSR 83-20 does not require 

a medical expert where the ALJ explicitly finds that the 

claimant has never been disabled.” 550 F.3d at 809. But the 

ALJ here did not find that Diedrich was never disabled. In 

fact, the ALJ could not have made such a finding because 

Diedrich was already found disabled as of her SSI and SSDI 

application date, August 26, 2009. Rather, the ALJ 

concluded that Diedrich was “not under a disability . . . at 

any time from October 1, 2002, the alleged onset date, 

through June 30, 2008, the date last insured.” This differs 

from the case in Sam, where the ALJ concluded that the 

claimant “was not under a ‘disability’ . . . at any time 

through the date of [the ALJ’s] decision.” Id. at 810 (internal 

quotation marks omitted). We conclude that Sam does not 

control here.

Finally, the district court held that the ALJ did not need 

to call a medical advisor because psychological consultants 

examined Diedrich’s medical records in reaching Diedrich’s 
DIEDRICH V. BERRYHILL 11

initial denial of SSDI benefits. But SSR 83-20 states that the 

ALJ should call a medical advisor “[a]t the hearing.” It does 

not say that the ALJ should rely on the previous work of 

DDS consultants. Moreover, if analysis from DDS 

consultants was a sufficient substitute for the testimony of a 

medical advisor, then SSR 83-20 would be superfluous. 

Applications for benefits are ordinarily reviewed by a 

consultant long before an ALJ gets involved. Relying on the 

initial review of DDS consultants also presents the practical 

problem that those consultants do not have before them the 

same record as the ALJ. In particular, such consultants do 

not have access to the later-in-time testimony given at the 

hearing. The consultant here, for example, did not have 

access to the hearing testimony of either Diedrich or of 

Niebaum because that testimony had not yet been given.

We hold that the Commissioner erred by not calling a 

medical advisor at the hearing to help determine the precise 

onset date of Diedrich’s disability under these 

circumstances—that is, where there are large gaps in the 

medical records documenting a slowly progressive 

impairment and an ALJ’s assessment of the disability onset 

date would be mere speculation without the aid of a medical 

expert. Even with a medical advisor, the date of onset of 

disability in this challenging case might have remained 

somewhat debatable and mysterious. But with testimony 

from a medical advisor, at least the ALJ could exercise an 

informed judgment based on medical science.

B

We next address Diedrich’s contention that the ALJ 

erred by giving “little weight” to Niebaum’s observations. 

“Lay testimony as to a claimant’s symptoms is competent 

evidence that an ALJ must take into account, unless he or 

she expressly determines to disregard such testimony and 
12 DIEDRICH V. BERRYHILL

gives reasons germane to each witness for doing so.” Lewis 

v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001). The ALJ listed 

three reasons for giving Niebaum’s observations “little 

weight”: (1) Niebaum had a close relationship with Diedrich, 

which “likely influenced his opinion;” (2) the “overall 

medical evidence” did not support Niebaum’s observations; 

and (3) Niebaum’s observations did not begin until 

September 2008, three month after Diedrich’s insurance for 

SSDI benefits expired. We conclude that each of these 

reasons is not germane as a reason to disregard Niebaum’s 

observations.

First, Niebaum’s personal relationship with Diedrich is 

not a valid reason to discount his observations. To do so 

“contradicts our insistence that, regardless of whether they 

are interested parties, friends and family members in a 

position to observe a claimant’s symptoms and daily 

activities are competent to testify as to his or her condition.” 

Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 694 

(9th Cir. 2009) (internal quotation marks omitted); see also 

Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996) (“The 

fact that a lay witness is a family member cannot be a ground 

for rejecting his or her testimony. To the contrary, testimony 

from lay witnesses who see the claimant every day is of 

particular value; such lay witnesses will often be family 

members.” (citation omitted)). Niebaum’s close relationship 

with Diedrich is not a germane reason to discount the weight 

of his observations.

Second, a lack of support from the “overall medical 

evidence” is also not a proper basis for disregarding 

Niebaum’s observations. See Bruce v. Astrue, 557 F.3d 

1113, 1116 (9th Cir. 2009) (“Nor under our law could the 

ALJ discredit [the witness’s] lay testimony as not supported 

by medical evidence in the record.”). The fact that lay 
DIEDRICH V. BERRYHILL 13

testimony and third-party function reports may offer a 

different perspective than medical records alone is precisely 

why such evidence is valuable at a hearing. See Smolen, 

80 F.3d at 1289 (holding that ALJ erred where the ALJ 

rejected the testimony of claimant’s family members about 

claimant’s symptoms because the medical records did not 

corroborate those symptoms). A lack of support from 

medical records is not a germane reason to give “little 

weight” to those observations.

Third, although Niebaum’s observations began three 

months after Diedrich’s insured period ended, his 

observations are still relevant to show Diedrich’s symptoms 

during that period. Absent a reason to think Diedrich 

experienced a major symptom change in the three months 

before she met Niebaum, it is a fair and reasonable inference 

that the symptoms Niebaum observed were substantially 

similar to the symptoms Diedrich experienced before June 

30, 2008. See Tobeler v. Colvin, 749 F.3d 830, 833 (9th Cir. 

2014) (“[Lay witness’s] statement that [claimant] was 

incapable of working in 2001 is relevant to his ability to 

work in 1999, at least in the absence of any evidence that 

[claimant’s] condition worsened between 1999 and 2001.”); 

cf. Lester v. Chater, 81 F.3d 821, 832 (9th Cir. 1995) 

(“[M]edical evaluations made after the expiration of a 

claimant’s insured status are relevant to an evaluation of the 

preexpiration condition.” (internal quotation marks 

omitted)), as amended (Apr. 9, 1996). That Niebaum’s 

observations began three months after Diedrich’s insured 

period ended is not a germane reason to give those 

observations “little weight.”

We conclude that none of the ALJ’s three reasons for 

discounting Niebaum’s observations is germane. We hold 
14 DIEDRICH V. BERRYHILL

that the ALJ erred by giving “little weight” to Niebaum’s 

observations.

C

Finally, we address Diedrich’s contention that the ALJ 

erred in finding that she was a “partially credible witness.”

In assessing the credibility of a claimant’s 

testimony regarding subjective pain or the 

intensity of symptoms, the ALJ engages in a 

two-step analysis. First, the ALJ must 

determine whether there is objective medical 

evidence of an underlying impairment which 

could reasonably be expected to produce the 

pain or other symptoms alleged. If the 

claimant has presented such evidence, and 

there is no evidence of malingering, then the 

ALJ must give specific, clear and convincing 

reasons in order to reject the claimant’s 

testimony about the severity of the 

symptoms.

Molina, 674 F.3d at 1112 (internal quotation marks and 

citations omitted). The ALJ gave four reasons for finding 

Diedrich’s testimony about the severity of her symptoms 

only “partially credible”: (1) Dr. Terri Robinson, an 

orthopedist who treated Diedrich, did not mention any 

mental health symptoms in her February 2008 report; 

(2) Melissa Buttars, a therapist who treated Diedrich, did not 

mention particular mental health symptoms in her May 2005 

report; (3) in the ALJ’s view of the record, there were no 

observations of Diedrich’s different personalities and there 

was no report mentioning multiple personalities before 

Diedrich’s date last insured; and (4) the ALJ viewed 

Diedrich’s daily life as involving a wide range of activities. 
DIEDRICH V. BERRYHILL 15

Based on our review of the record in this case, we conclude 

that none of these reasons is “clear and convincing.” Id.

Regarding Dr. Robinson’s report, the ALJ said that Dr. 

Robinson “did not make any observations about the claimant 

being anxious, flighty, depressed, or manic, which would 

suggest that [] the claimant’s mental health symptoms were 

not as severe as she testified to at the hearing.” But even if 

Diedrich were suffering from such symptoms, we would not 

necessarily expect Dr. Robinson to note them in her report. 

Dr. Robinson was an orthopedist, not a mental health 

professional. She might have thought it beyond her capacity 

to inquire or comment about mental health symptoms. In 

line with her specialty, Dr. Robinson reported the pain that 

Diedrich said she was feeling in her back, shoulder, neck, 

hand, and wrist. Still, under the heading “Chief 

Complaints,” Dr. Robinson noted “Multiple psychiatric 

history; bipolar disorder, ADHD, borderline personality 

disorder, panic disorder, agoraphobia.” It is unsurprising 

that Dr. Robinson did not also mention Diedrich’s specific 

mental health symptoms. That she did not do so, in our view, 

says little about the extent to which Diedrich may in fact 

have been suffering from such symptoms.

Moreover, the same month that Diedrich saw Dr. 

Robinson, she also saw a psychologist, Dr. Nick Dietlein. 

Dr. Dietlein concluded that Diedrich presented “symptoms 

consistent with a Major Depressive Disorder and PTSD. It 

is very possible that she has Attention Deficit Disorder.” Dr. 

Dietlein’s conclusions reinforce that the absence of mental 

health symptoms from Dr. Robinson’s report does not tend 

to prove, let alone prove persuasively, that Diedrich lacked 

such symptoms. Dr. Robinson’s report does not provide a 

clear and convincing reason for discounting Diedrich’s 

testimony.
16 DIEDRICH V. BERRYHILL

Regarding therapist Buttars’s May 2005 assessment, the 

ALJ noted that Buttars found “no indication of 

hallucinations, delusions, obsessions, phobias, or perceptual 

disturbances”; that Diedrich described her mood to Buttars 

as “good”; and that Buttars found Diedrich’s social 

judgment, intellectual functioning, and memory all normal. 

However, the fact that Diedrich was not exhibiting certain 

symptoms at the time of her appointment on a particular day 

does not indicate that Diedrich was not experiencing those 

symptoms generally or at other pertinent times. As the Ninth 

Circuit has explained:

[Regarding] mental health issues, it is error to 

reject a claimant’s testimony merely because 

symptoms wax and wane in the course of 

treatment. Cycles of improvement and 

debilitating symptoms are a common 

occurrence, and in such circumstances it is 

error for an ALJ to pick out a few isolated 

instances of improvement over a period of 

months or years and to treat them as a basis 

for concluding a claimant is capable of 

working . . . . While ALJs obviously must 

rely on examples to show why they do not 

believe that a claimant is credible, the data 

points they choose must in fact constitute 

examples of a broader development to satisfy 

the applicable “clear and convincing” 

standard.

Garrison, 759 F.3d at 1017–18. Here, the absence of certain 

symptoms from Buttars’s report is insufficient to show a 

“broader development” that Diedrich did not experience 

those symptoms. Id. at 1018. Indeed, Buttars’s report noted 

that Diedrich’s mental health disorders were in partial 
DIEDRICH V. BERRYHILL 17

remission. It was improper for the ALJ to discount 

Diedrich’s testimony by “cherry pick[ing]” the absence of 

certain symptoms from this report. Attmore v. Colvin, 

827 F.3d 872, 877 (9th Cir. 2016) (quoting Scott v. Astrue, 

647 F.3d 734, 740 (7th Cir. 2011)). Buttars’s report does not 

provide a clear and convincing reason to find Diedrich’s 

claims regarding the extent of her symptoms unreliable.

Next, we address the ALJ’s comments that nobody 

observed Diedrich’s different personalities and that no report 

mentioned multiple personalities before Diedrich’s last date 

insured. We disagree with the ALJ that the record supports 

this characterization. At the hearing, Niebaum testified in 

detail about his observations of Diedrich’s split personality 

symptoms. He also mentioned those symptoms in his thirdparty function report. And, though Niebaum’s observations 

began three months after Diedrich’s date last insured, they 

still to a degree support the notion that Diedrich’s split 

personality symptoms during the insured period were as she 

described them. See Tobeler, 749 F.3d at 833. In addition, 

a counseling progress report from May 2007 mentioned that 

Diedrich had a history of “blackouts” that were triggered by 

arguments or events that “evoked intense feelings.” It also 

noted that a previous therapist had diagnosed Diedrich with 

split personality disorder. The ALJ’s characterization of the 

record does not survive scrutiny. We conclude that the 

ALJ’s assertions related to Diedrich’s split personality 

disorder are not clear and convincing reasons to find 

Diedrich only partially credible.

Finally, we address the ALJ’s argument that Diedrich’s 

“activities of daily living are wide.” The ALJ took note of 

certain daily activities that Diedrich could perform, such as 

bathing, cooking, taking care of her cat, chores around the 

house, shopping, paying bills, and using a checkbook. But 
18 DIEDRICH V. BERRYHILL

the ALJ ignored other evidence showing the difficulties 

Diedrich faced in everyday life. See Gallant v. Heckler, 

753 F.2d 1450, 1456 (9th Cir. 1984) (ALJ may not justify a 

credibility finding “by ignoring competent evidence in the 

record that suggests an opposite result”). This evidence

included going three to five days without sleeping; weekslong bouts of depression; overspending and 

promiscuousness during manic periods; hallucinations; 

difficulty paying attention; inability to follow through on 

activities; difficulty remembering things; severe panic 

attacks; anxiety about, and aversion to, social situations; 

blackouts and alternate personalities; needing reminders to 

take medicine; forgetting appointments; getting sidetracked 

when outside the house; frustration and confusion when 

reading; trouble following and remembering instructions; 

trouble with changes to routine; trouble handling stress; and 

“extreme difficulty” staying focused on a task. That 

Diedrich could participate in some daily activities does not 

contradict the evidence of otherwise severe problems that 

she encountered in her daily life during the relevant period.

The sorts of daily activities Diedrich could perform are 

also not readily “transferrable to a work environment.” 

Ghanim v. Colvin, 763 F.3d 1154, 1165 (9th Cir. 2014) 

(internal quotation marks omitted); see also Smolen, 80 F.3d 

at 1284 n.7 (“The Social Security Act does not require that 

claimants be utterly incapacitated to be eligible for benefits, 

and many home activities may not be easily transferable to a 

work environment . . . .”). House chores, cooking simple 

meals, self-grooming, paying bills, writing checks, and 

caring for a cat in one’s own home, as well as occasional 

shopping outside the home, are not similar to typical work 

responsibilities. See, e.g., Gallant, 753 F.2d at 1453 

(ordering award of benefits for leg and back pain despite 

claimant’s daily activities of cooking meals and washing 
DIEDRICH V. BERRYHILL 19

dishes). We note that even though Diedrich was performing 

these tasks, she was likely not doing them with the 

consistency and persistence that a work environment 

requires. See Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 

1989) (“[M]any home activities are not easily transferable to 

what may be the more grueling environment of the 

workplace, where it might be impossible to periodically rest 

or take medication.”). Diedrich’s symptoms also included 

anxiety related to social interactions, making a task easy to 

perform inside the home potentially very difficult to perform 

outside the home. Diedrich’s ability to perform certain daily 

activities is not a clear and convincing reason to find her less 

than fully credible.

We conclude that none of the ALJ’s given reasons for 

finding Diedrich only partially credible is clear and 

convincing. We hold that the ALJ erred in its credibility 

finding related to Diedrich.

IV

In summary, we hold that the ALJ erred (1) by not calling 

a medical advisor to help determine the precise onset date of 

Diedrich’s disability; (2) by giving “little weight” to 

Niebaum’s observations; and (3) by finding Diedrich only 

“partially credible.” We also conclude that none of these 

errors is harmless. See Molina, 674 F.3d at 1115. On the 

grounds listed, we reverse in part the district court’s 

decision. In a separately filed memorandum disposition, we 

otherwise affirm in part the district court’s decision. We 

remand for further proceedings with instructions that the 

ALJ’s decision be vacated, and that the district court shall 

remand to the ALJ with instruction that it should call a 

medical advisor and otherwise proceed in a manner 

consistent with our opinion.
20 DIEDRICH V. BERRYHILL

The Commissioner shall bear all costs on appeal.

AFFIRMED in part, REVERSED in part, and 

REMANDED.

RAWLINSON, Circuit Judge, dissenting:

I respectfully dissent from my colleagues’ conclusions 

that the Administrative Law Judge (ALJ) “erred in its 

assessment (1) by not calling a medical advisor at the 

hearing; (2) by giving too little weight to the observations of 

[Plaintiff-Appellant Brenda M.] Diedrich’s fiancé; and 

(3) by finding that Diedrich was only partially credible.” 

Majority Opinion, p. 4.

It is unquestioned and unquestionable that the claimant 

suffered from significant physical and mental impairments. 

The issue raised in the proceedings was whether those 

impairments rendered the claimant disabled under the Social 

Security Act. The ALJ ruled that they did not. Our task is 

to examine whether the ALJ’s determination is supported by 

substantial evidence, not whether we disagree with the 

ALJ’s determination. See Attmore v. Colvin, 827 F.3d 872, 

875 (9th Cir. 2016).

1. Failure To Call A Medical Advisor

The majority concludes that the ALJ committed legal 

error by failing to call a medical advisor to assist in 

determining the disability onset date. See Majority Opinion, 

p. 11. The majority acknowledges that we have consistently 

ruled that a medical advisor is required only if there is 

ambiguity in the record and the onset date must be inferred. 

See id., p. 9; see also Armstrong v. Comm’r, 160 F.3d 587, 
DIEDRICH V. BERRYHILL 21

589 (9th Cir. 1998). However, the majority opinion points 

to no real ambiguity in the record regarding the onset date of 

the claimant’s disability. Indeed, the ALJ, without 

objection, accepted the alleged onset date of October 1, 

2002, when evaluating the evidence offered to support a 

finding of disability. The majority seeks to manufacture an 

ambiguity by selectively referring to portions of the record. 

See Majority Opinion, p. 10. But the fact remains that the 

parties did not dispute the onset date alleged by Diedrich and 

accepted by the ALJ. There is absolutely no ambiguity in 

this record regarding the asserted onset date.

More importantly, we have ruled that no medical advisor 

is required if the ALJ determines that the claimant was never 

disabled. See Sam v. Astrue, 550 F.3d 808, 809 (9th Cir. 

2008). This ruling makes perfect sense because if there was 

never a disability, the onset date no longer has relevance. In 

concluding that this precedent does not apply, the majority 

inexplicably ignores at least four explicit findings of nondisability made by the ALJ.

On page 1 of her decision, the ALJ stated:

After careful consideration of all the 

evidence, the undersigned concludes the 

claimant was not under a disability within the 

meaning of the Social Security Act. . .

On page 12 of the decision, the ALJ determined:

A finding of “not disabled” is therefore 

appropriate under the framework of the 

above cited rule.

. . .
22 DIEDRICH V. BERRYHILL

The claimant was not under a disability, as 

defined in the Social Security Act, at any 

time from October 1, 2002, the alleged 

onset date, through June 30, 2008, the date 

last insured . . .

In her conclusion on page 13 of the decision, the ALJ 

reiterated:

Based on the application for a period of 

disability and disability insurance benefits 

. . ., the claimant was not disabled under 

sections 216(i) and 223(d) of the Social 

Security Act . . .

In view of the ALJ’s repeated findings of no disability, 

it cannot credibly be gainsaid that the ALJ found the 

claimant was not disabled. That finding placed this case 

within our holding in Sam that no medical advisor was 

required. No legal error occurred. See Sam, 550 F.3d at 810 

(“Because the ALJ found that Sam was not disabled at any 

time through the date of the decision, the question of when

he became disabled did not arise and the procedures 

prescribed in SSR 83-20 did not apply.”) (citation omitted) 

(emphases in Sam). In Sam, we clarified that “SSR 83-20 

addresses the situation in which an administrative law judge 

makes a finding that an individual is disabled as of an 

application date and the question arises as to whether the 

disparity arose at an earlier time.” Id. (citation omitted).

We distinguished our earlier decisions in Armstrong and 

Morgan v. Sullivan, 945 F.2d 1079 (9th Cir. 1991), as 

applying when “there was either an explicit ALJ finding or 

substantial evidence that the claimant was disabled at some 

point after the date last insured, thus raising a question of 
DIEDRICH V. BERRYHILL 23

onset date.” Sam, 550 F.3d at 811 (emphasis added). In 

contrast, the ALJ in Sam, like the ALJ in the case before us, 

“found that [the claimant was not disabled at any time.” Id. 

In light of that finding, “the ALJ was not required by SSR 

83-20 to introduce a medical expert into the process.” Id.

2. Giving Too Little Weight To The Testimony Of 

Claimant’s Fiancé

This issue may be resolved by reviewing the claimant’s 

testimony because we have ruled that where the ALJ 

provides germane reasons for giving less weight to 

subjective testimony from one witness, similar testimony by 

a different witness may also be given less weight. See 

Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012) 

(“[B]ecause the ALJ provided clear and convincing reasons 

for rejecting the claimant’s own subjective complaints, and 

because the lay witness’s testimony was similar to such 

complaints, it follows that the ALJ also gave germane 

reasons for rejecting the lay witness’s testimony.”) (quoting 

Valentine v. Comm’r, 574 F.3d 685, 694 (9th Cir. 2009) 

(internal quotation marks omitted)).

As discussed below, the ALJ gave “clear and 

convincing” reasons for only partially crediting the 

claimant’s testimony. Garrison v. Colvin, 759 F.3d 995, 

1014–15 (9th Cir. 2014) (setting standard). As a result, the 

testimony of claimant’s fiancé fares no better. See Molina, 

674 F.3d at 1114.

3. Partially Crediting Claimant’s Testimony

The ALJ provided the following reasons for only 

partially crediting the claimant’s testimony:
24 DIEDRICH V. BERRYHILL

(1) Although the claimant testified that she suffered 

from “severe mania, depression, anxiety, and agoraphobia,” 

the “orthopedic consultative examiner . . . did not make any 

observations about the claimant being anxious, flighty, 

depressed, or manic.” In addition, mental health treatment 

notes support a conclusion that the claimant was capable of 

functioning.” A mental health examination reflected “no 

indication[s] of hallucinations, delusions, obsessions, 

phobias, or perceptual disturbances.” Indeed, the claimant 

herself “described her mood as ‘good’ and her social 

judgment, intellectual functioning, and memory were all 

normal.” Despite the claimant’s testimony regarding 

multiple personalities and disassociative disorder,” there 

were no reported observations of multiple personalities in 

the record.

(2) The claimant engaged in a wide range of daily living 

activities that were inconsistent with her asserted disability. 

The claimant lived alone with her cat, dressed herself, bathed 

herself, enjoyed cooking, fed her cat, cleaned the cat’s litter 

box, cleaned her home, washed dishes, vacuumed and 

cleaned her bathrooms. She sometimes walked and 

sometimes traveled by car to various destinations. She 

shopped for groceries and clothes, and was able to pay bills, 

count change, and use a checkbook. She also managed a 

savings account.

We have consistently held that similar findings 

constituted substantial evidence to support a partial 

credibility determination made by an ALJ. See, e.g., Lewis 

v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001) (“One reason for 

which an ALJ may discount lay testimony is that it conflicts 

with medical evidence.”) (citation omitted); see also id. at 

512 (“The absence of any mention of fatigue, along with the 

‘no side effects’ observations in [claimant’s] medical 
DIEDRICH V. BERRYHILL 25

reports, supported the ALJ’s rejection of . . . testimony that 

[claimant] had suffered chronic fatigue . . .”).

The majority takes issue with the partial credibility 

finding of the ALJ, specifically challenging the bona fides of 

the reasons articulated by the ALJ to support her finding.

In addressing the ALJ’s reliance on the lack of any 

reference to the claimant being “anxious, flighty, depressed 

or manic,” in Dr. Robinson’s report, the majority observes 

that Dr. Robinson was an orthopedist rather than a mental 

health professional. Majority Opinion, p. 15. However, an 

orthopedic physician is an acceptable medical source upon 

whose observations the ALJ properly relied. See 20 C.F.R. 

§ 416.902(a) (defining “acceptable medical source”). The 

listing of complaints referenced by the majority, see 

Majority Opinion, p. 15, merely represented claimant’s 

summary of her condition rather than observations of the 

physician. See Tommasetti v. Astrue, 533 F.3d 1035, 1041 

(9th Cir. 2008) (permitting an ALJ to “reject a treating 

physician’s opinion if it is based to a large extent on a 

claimant’s self-reports . . .”) (citation and internal quotation 

marks omitted).

The majority also refers to the claimant’s visit to a 

psychologist, Dr. Dietlein. See Majority Opinion, p. 15. 

Nevertheless, the bottom line of Dr. Dietlein’s opinion does 

not support a claim of mental disability. In Dr. Dietlein’s 

Summary of Findings, he concluded: “Today’s evaluation 

revealed that Ms. Diedrich is able to understand and 

remember instructions, is able to sustain her concentration 

and attention and is able to persist. She was able to engage 

in social interactions successfully. I believe she would be 

able to adequately manage any funds that might be given to 

her.”
26 DIEDRICH V. BERRYHILL

Addressing the lack of mental health symptoms observed 

by therapist Buttar, the majority offers the following 

equivocation:

[T]he fact that Diedrich was not exhibiting 

certain symptoms at the time of her 

appointment on a particular day does not 

indicate that Diedrich was not experiencing 

those symptoms generally or at other 

pertinent times. . . .

Majority Opinion, p. 16.

The majority also isolates therapist Buttar’s observations 

to argue the absence of a “broader development” of mental 

health issues. Majority Opinion, p. 16 (quoting Garrison v. 

Colvin, 759 F.3d 995, 1017–18 (9th Cir. 2014)). The flaw 

in the majority’s argument is that Buttar’s observations were 

buttressed by the similar observations of Drs. Robinson and 

Dietlin, reflecting a “broader development” of the absence 

of a disabling mental disability. Garrison, 759 F.3d at 1017.

More fundamentally, the majority’s reliance on Garrison

is singularly misplaced because the facts in Garrison are 

almost the polar opposite of the facts in this record. In 

Garrison, the “diagnoses of [post-traumatic stress disorder] 

and bipolar disorder remained constant across all treatment 

records.” Id. at 1017. In this case, in contrast, the absence

of any observed disabling mental impairment “remained 

constant across all treatment records.” Id. (emphasis added).

At best, the majority’s view is an alternative 

interpretation of the evidence presented at the hearing. 

However, we have repeatedly held that if there are two 

permissible views of the evidence, the view taken by the ALJ 

must stand. See Burch v. Barnhart, 400 F.3d 676, 679 
DIEDRICH V. BERRYHILL 27

(“Where evidence is susceptible to more than one rational 

interpretation, it is the ALJ’s conclusion that must be 

upheld. . . .” (citation omitted) (emphasis added); see also 

Garrison, 759 F.3d at 1010 (“Where the evidence can 

reasonably support either affirming or reversing a decision, 

we may not substitute our judgment for that of the ALJ. . . .”) 

(citation and alteration omitted); Holohan v. Massanari, 

246 F.3d 1195, 1201 (9th Cir. 2001) (same).

The majority also takes issue with the ALJ’s discounting 

of the “split personality” disorder evidence. See Majority 

Opinion, p. 17. As an initial matter, the reference to a 

previous diagnosis of split personality was based entirely on 

the claimant’s own reporting, and may be discounted on that 

basis. See Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 

1206–07 (9th Cir. 2008) (holding that “an ALJ may discount 

a medical opinion that relies on subjective statements rather 

than clinical findings”). In addition, reliance on the 

observations of claimant’s fiancé to support the diagnosis of 

“split personality” is problematic for two reasons: 1) the 

observations were made after the date last insured and 2) the 

observations were not consistent with the medical evidence 

of record. See Dale v. Colvin, 823 F.3d 941, 944 (9th Cir. 

2016) (describing after-the-fact observations of the 

claimant’s impairments as “marginally relevant,” especially 

where the evidence differed from the opinion of the doctors); 

see also Batson v. Comm’r, 359 F.3d 1190, 1196 (9th Cir. 

2004) (approving ALJ discrediting of claimant’s testimony 

that was inconsistent with the medical evidence); Bayliss v. 

Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005) (approving 

ALJ discrediting of family member testimony that was 

inconsistent with the medical evidence); Vincent on behalf 

of Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984) 

(same). In sum, the ALJ’s discounting of the fiancé’s 

testimony was supported by substantial evidence.
28 DIEDRICH V. BERRYHILL

We have regularly defined substantial evidence as “more 

than a scintilla [but] less than a preponderance.” Holohan, 

246 F.3d at 1201, quoting Tackett v. Apfel, 180 F.3d 1094, 

1097 (9th Cir. 1999). We have emphasized that the 

substantial evidence standard is “very deferential . . . even 

more so than the ‘clearly erroneous’ standard.” Brault v. 

Social Sec. Admin., 683 F.3d 443, 448 (9th Cir. 2012) 

(citation omitted). We have clarified that “[t]he substantial 

evidence standard means once an ALJ finds facts, we can 

reject those facts only if a reasonable factfinder would have 

to conclude otherwise.” Id. (citations and internal quotation 

marks omitted) (emphasis in the original).

Unfortunately, the majority failed to adhere to this 

standard throughout the majority opinion, but most 

especially when reviewing the ALJ’s determination that the 

claimant’s daily activities were inconsistent with the 

asserted level of impairment.

The ALJ noted that the claimant lived alone with her cat, 

cared for her cat, bathed and dressed herself, enjoyed 

cooking, and cleaned her home. She shopped for groceries 

and clothing, paid bills, counted change, used a checkbook, 

and managed a savings account.

We have recognized and affirmed findings of an ALJ 

that similar “daily activities [of a claimant] are inconsistent 

with [her] allegations of disability.” Carmickle v. Comm’r, 

533 F.3d 1155, 1163 (9th Cir. 2008).

More precisely, we have upheld similar credibility 

findings in cases involving facts virtually identical to those 

in this case. See Batson, 359 F.3d at 1196 (upholding a 

partial credibility determination where the claimant 

“tend[ed] his animals, walk[ed] outdoors, [went] out for 

coffee, and visit[ed] with neighbors”); see also Morgan v. 
DIEDRICH V. BERRYHILL 29

Comm’r, 169 F.3d 595, 600 (9th Cir. 1999) (affirming that 

the ALJ “provided specific and substantial reasons that 

undermine [claimant’s] credibility,” including the 

claimant’s “ability to fix meals, do laundry, work in the yard, 

and occasionally care for his friend’s child”).

In Burch, 400 F.3d at 680–81, the ALJ noted that the 

claimant was “able to care for her own personal needs, cook, 

clean and shop. She interact[ed] with her nephew and her 

boyfriend. She [was] able to manage her own finances and 

those of her nephew.” In upholding the ALJ’s partial 

rejection of the claimant’s testimony, we emphasized:

Although the evidence of [the claimant’s] 

daily activities may also admit of an 

interpretation more favorable to [the 

claimant], the ALJ’s interpretation was 

rational, and we must uphold the ALJ’s 

decision where the evidence is susceptible to 

more than one rational interpretation.

Id. (alteration omitted).

After applying the deferential substantial evidence 

standard of review, I agree with the magistrate judge and the 

district court that the decision of the ALJ was free of legal 

error and supported by substantial evidence. In my view, the 

majority reaches a different result by reweighing the 

evidence, something we are not permitted to do. See Brault, 

683 F.3d at 447 (“[I]t is not our function to determine de 

novo whether a [claimant] is disabled. . . .) (citation and 

alteration omitted).

I respectfully dissent.