FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALLEN G. LINGENFELTER, 

Plaintiff-Appellant, No. 04-56934

v. D.C. No.

MICHAEL J. ASTRUE,*  CV-03-00264-RT

Commissioner of Social Security OPINION Administration,

Defendant-Appellee. 

Appeal from the United States District Court

for the Central District of California

Robert J. Timlin, Senior Judge, Presiding

Argued and Submitted

December 8, 2006—Pasadena, California

Filed October 4, 2007

Before: Robert R. Beezer, Kim McLane Wardlaw, and

Richard A. Paez, Circuit Judges.

Opinion by Judge Paez;

Dissent by Judge Beezer

*Michael J. Astrue is substituted for his predecessor Jo Anne Barnhart

as Commissioner of the Social Security Administration. Fed. R. App. P.

43(c)(2). 

13427
COUNSEL

Troy D. Monge, Law Offices of Martin Taller, Anaheim, California, for plaintiff-appellant Allen G. Lingenfelter. 

Peter D. Keisler, Assistant Attorney General, Debra W. Yang,

United States Attorney, Janice L. Walli, Regional Chief

Counsel, Region IX, John C. Cusker, Assistant Regional

Counsel, Social Security Administration, San Francisco, California, for defendant-appellee Michael J. Astrue, Commissioner of Social Security Administration. 

OPINION

PAEZ, Circuit Judge: 

Allen Lingenfelter appeals the district court’s judgment

affirming an Administrative Law Judge’s (“ALJ”) decision

denying his applications for social security disability insurance benefits and supplemental security income under Titles

II and XVI of the Social Security Act (“SSA”), 42 U.S.C.

§§ 401-34, 1381-83f. Lingenfelter argues that substantial evidence does not support the ALJ’s decision because the ALJ

improperly rejected his testimony as not credible. We have

13430 LINGENFELTER v. ASTRUE
jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse the

judgment of the district court with instructions to remand to

the ALJ for the calculation and award of appropriate benefits.1

I. Background

A. Procedural History

On August 19, 1997, Lingenfelter filed applications for disability insurance benefits and supplemental security income,

alleging that he had been disabled and unable to work since

November 8, 1993 due to severe foot and knee impairments.

After his applications were denied initially and upon reconsideration, Lingenfelter requested a hearing before an ALJ. At

the January 4, 2000 hearing, Lingenfelter was represented by

counsel and testified on his own behalf. The ALJ issued a

decision denying Lingenfelter’s applications on March 22,

2000, finding that Lingenfelter suffered from multiple severe

impairments but was not disabled within the meaning of the

SSA. The Appeals Council denied Lingenfelter’s request for

review and adopted the ALJ’s decision as the final decision

of the Commissioner on January 13, 2003.2 Lingenfelter then

filed a complaint for review with the district court, which

issued an order and judgment adopting the report and recommendation of a magistrate judge and affirming the ALJ’s

decision. Lingenfelter timely appealed.

1Lingenfelter currently receives disability benefits on the basis of a subsequent application, filed on April 18, 2002 and not at issue here, which

the Social Security Administration granted because of a material change

in Lingenfelter’s age. Thus, at issue here is Lingenfelter’s entitlement to

past benefits. 

2

In denying Lingenfelter’s request for review, the Appeals Council considered additional medical evidence that he submitted on December 9,

2002. Under these circumstances, “we consider on appeal both the ALJ’s

decision and the additional material submitted to the Appeals Council.”

Ramirez v. Shalala, 8 F.3d 1449, 1452 (9th Cir. 1993); see also Harman

v. Apfel, 211 F.3d 1172, 1180 (9th Cir. 2000) (“We properly may consider

the additional materials because the Appeals Council addressed them in

the context of denying Appellant’s request for review.”). 

LINGENFELTER v. ASTRUE 13431
B. Facts

The parties do not dispute most of the relevant facts. Born

on May 14, 1951, Lingenfelter was 48 years old at the time

of his hearing before the ALJ. He had a high school education

and worked most of his adult life as a construction worker,

warehouse worker, and automobile detailer. He first underwent surgery on his left knee in 1970. He suffered a workrelated injury of the same knee on November 8, 1993, which

has required multiple surgeries, including two knee arthroscopies in 1994 and 1996. About three years later, in November

1996, Lingenfelter started to experience significant pain in his

left foot as well, and by 1997 he was experiencing severe pain

in both feet.

1. Medical Reports

According to the medical reports in the administrative

record, more than ten doctors, including two primary treating

physicians, had examined or treated Lingenfelter prior to the

hearing. The doctors had diagnosed Lingenfelter with, among

other things, torn lateral and medial meniscae, significant

advanced osteoarthritis, degenerative joint disease, post-polio

syndrome, posterior tibial tendon rupture and tendinitis, and

bilateral advanced arthrosis and planovalgus deformity. 

After first injuring his left knee in 1993, Lingenfelter was

examined by Doctors Tony M. Deeths and P.B. Johnson, who

diagnosed osteoarthritis and cartilage damage. In February

1994, orthopaedic surgeon Marshall S. Lewis performed

arthroscopic surgery on Lingenfelter’s knee, which revealed

“torn medial and lateral menisci with osteoarthritis of the left

knee and chondromalacia.” Later in 1994, following reports

of continued swelling and locking of the left knee, Dr. Dilibeno examined Lingenfelter and found a “large erosive hole

in the lateral tibial plateau extending down (through cartilage)

to bone over the weight bearing area.” He also diagnosed

degenerative joint disease and determined that Lingenfelter

13432 LINGENFELTER v. ASTRUE
would need a total knee replacement. On the basis of similar

findings in a February 1995 examination, Dr. Daniel N.

Ovadia concluded that Lingenfelter could not return to his

usual work and was precluded from any prolonged standing

or walking. 

In 1996, Lingenfelter started seeing the first of his two primary treating physicians, knee specialist Dr. James T. Caillouette. From 1996 to 1999, Dr. Caillouette consistently

reported that Lingenfelter was in pain because of his knee and

feet. Following diagnostic arthroscopy, Dr. Caillouette determined that Lingenfelter’s knee had “complete lateral joint collapse with bone-on-bone in the lateral joint space and

significant osteophyte formation.” He concluded that Lingenfelter needed a total knee replacement (arthroplasty) because

of the severe pain. Dr. Caillouette also found that both of Lingenfelter’s feet had experienced significant atrophy, and prescribed him a wheelchair in 1997 to help alleviate the pain. In

1998, Dr. Caillouette reported that Lingenfelter’s left foot had

completely collapsed. He also determined that Lingenfelter

was “fully disabled from work” until he received appropriate

treatment. 

In 1997, Dr. Richard I. Woods examined Lingenfelter on

behalf of the California Workers’ Compensation Appeals

Board. Lingenfelter reported to Dr. Woods that he felt constant sharp pain in his knee and feet and that “his knee stiffens

up and becomes more painful after sitting for about ten minutes or holding the knee in one position for about ten minutes.” Lingenfelter also reported that, because of the pain, he

was unable to perform any significant activities. Dr. Woods

agreed with Dr. Caillouette that Lingenfelter needed a total

knee arthroplasty, as radiographs revealed advanced osteoarthritis and significant atrophy of the left thigh. He also diagnosed degenerative disorder, bilateral tibial tendinitis and rupture, and advanced arthrosis of bilateral mid feet with loss of

plantar arch and collapse of the left mid foot. Dr. Woods concluded that Lingenfelter was limited to semi-sedentary work,

LINGENFELTER v. ASTRUE 13433
and even then would require the use of a cane to help alleviate

pain. 

In 1998, Dr. Roger Sung examined Lingenfelter on behalf

of the California Department of Social Services. Dr. Sung

reported that “X-rays of the left knee show severe tricompartmental arthritis with significant loss of joint space both medially and laterally [along with] marked osteophyte formation.”

He also diagnosed “significant left knee osteoarthritis and

bilateral foot planovalgus deformity.” He concluded that Lingenfelter was limited in his ability to walk but could sit for a

full day with appropriate breaks. Two other state agency doctors reviewed Lingenfelter’s medical records and made similar findings, concluding that he could “stand and/or walk at

least two hours in an eight-hour workday; sit about six hours

in an eight-hour workday; [and] had limited use of the left

lower extremity . . . and both feet.” 

Also in 1998, Dr. Stuart A. Green examined Lingenfelter

and reviewed his medical records and X-rays for the Workers’

Compensation Appeals Board. Consistent with the medical

record, Dr. Green reported bilateral foot and gait deformities,

absent or weak tibialis posterior function, and knee atrophy,

swelling, and pain. He also agreed that Lingenfelter would

require knee surgery, either immediately or in the near future.

Contrary to the earlier reports, however, he concluded that

Lingenfelter’s lower extremity impairments were the result of

post-polio syndrome, “a late manifestation of poliomyelitis

that affects middle age individuals.” As Dr. Green reported:

What surprised me as I went through the medical

records in this case is that no practitioner seems to

have focused attention on what seems to me a critical aspect of this applicant’s past history. Mr. Allen

Lingenfelter, at the age of four, had severe poliomyelitis. He was in an iron lung for a while, and almost

died. 

13434 LINGENFELTER v. ASTRUE
In 1999, Lingenfelter began seeing his second primary

treating physician, foot specialist Dr. Alexander Tischler. Dr.

Tischler diagnosed “severe flatfoot deformity of both feet”

and “arthritis of the tarsometatarsal joint,” and determined

that triple arthrodesis surgery was “a medical necessity.” He

also reported that Lingenfelter had severe knee and foot pain,

which he stated “he could no longer live with.” Dr. Tischler

concluded that Lingenfelter was “totally disabled . . . and is

really unable to do any work that requires any sitting or standing.” By July 2000, Dr. Tischler reported that Lingenfelter

was “mostly in a wheelchair” and that bilateral casts were the

only treatment that helped to reduce his pain. 

Finally, in 2001, after Lingenfelter underwent the recommended triple arthrodesis surgery, Dr. Ronald Smith diagnosed “status post hindfoot reconstruction with incomplete

arthrodesis” and “severe pes planus with subtalar instability

and rupture of the posterior tibial tendon.” In his description

of Lingenfelter’s symptoms, Dr. Smith reported that some

pain and swelling were always present, that he elevated his

feet for relief, and that he used a wheelchair and crutches as

aids for walking. Dr. Smith concluded that these “symptoms

are consistent with the examination findings, history, and

radiograph,” and that Lingenfelter’s pain complaints were

objectively reasonable. Dr. Smith at times reported that Lingenfelter was temporarily totally disabled, but at other times

reported that he was able to do sedentary work.

2. Lingenfelter’s Testimony

At his hearing before the ALJ in January 2000, Lingenfelter

testified that he had experienced constant pain since 1993,

along with regular cramping, swelling, and fatigue. He

described the pain in his left knee as moderate to severe but

stated that “it’s my feet that hurt so bad,” as if “somebody

[were] sticking a knife in them, and putting electricity in

them, these shocks I get, are just unbelievable.” He further

testified that, because of the pain and fatigue, he could only

LINGENFELTER v. ASTRUE 13435
stand for 20 minutes or sit for 15-20 minutes at a time, and

had to lie down at least three times a day for 30-45 minutes.

He also testified that he needed to keep his legs elevated

every day, even while sitting, and that the pain affected his

ability to sleep. 

With regard to treatment, Lingenfelter stated that he took

Vicodin three times a day for pain, as prescribed by Dr.

Tischler, and sought relief from severe pain by soaking his

feet in buckets of ice or a bath tub filled with Epsom salt and

hot water. He testified that he almost always used the cane

that Dr. Caillouette prescribed in 1996, but only sometimes

used crutches because they hurt his arms, and was unable to

use a wheelchair because his insurance refused to approve the

prescription from Dr. Caillouette. At the time of the hearing,

Lingenfelter was also wearing a cast that Dr. Tischler prescribed for his right foot, but had not yet undergone the triple

arthrodesis or total knee arthroplasty. He testified that he

wanted to have the surgeries, which he hoped would alleviate

his pain and swelling, but that his insurance company had not

authorized them. 

Lingenfelter testified that pain severely limited his daily

activities. He stated that he had difficulty showering, could

not do yard work or a lot of driving, and usually had other

people shop for him, since he was otherwise able to shop for

only a few things at a time. Likewise, he stated that he had

trouble finishing tasks generally, because he could not sit or

stand for long. He testified that he occasionally watched his

daughter play sports, but that it was difficult for him because

of his knee and feet. 

Finally, Lingenfelter testified that he lived in a room that

he rented at a friend’s house and had not worked since his

injury in 1993, except for a nine week period starting in February 1999. He stated that at that time he took a job washing

tour buses because he had “no money, no income at all.” He

testified that he could not perform that work again and that he

13436 LINGENFELTER v. ASTRUE
only did so then because he “just didn’t have any money” and

“had to do something to live.” He stated that he left the job

after a week because a union job at a warehouse opened up.

He was fired from that job after eight weeks, however,

because he was too slow to do the work adequately. He also

testified that when he returned home from work each day his

“feet were so swollen,” and that he “just couldn’t do it anymore” because of the pain.

C. ALJ Decision

In denying Lingenfelter’s applications, the ALJ applied the

five-step disability evaluation process set forth in 20 C.F.R.

§ 404.1520. See Lester v. Chater, 81 F.3d 821, 828 n.5 (9th

Cir. 1995) (describing the five-step process). Because Lingenfelter’s disability insurance lapsed on June 30, 1998, he had

to establish that he was disabled for at least a twelve-month

period between the alleged onset date, November 8, 1993, and

June 30, 1998 (the “relevant time period”).3See Reddick v.

Chater, 157 F.3d 715, 721 (9th Cir. 1997) (“To qualify for

disability benefits, a claimant must show that a medically

determinable physical or mental impairment prevents her

from engaging in substantial gainful activity and that the

impairment is expected to result in death or to last for a continuous period of at least twelve months.” (citing 42 U.S.C.

§ 423(d)(1)(A)). 

The ALJ found, and the parties do not dispute, that Lingenfelter passed the hurdles set at steps one and two of the fivestep process, because he was not then engaging in substantial

gainful activity and he suffered from a number of severe

3As we explained in Smith v. Bowen, however, “reports containing

observations made after the period for disability are relevant to assess the

claimant’s disability.” 849 F.2d 1222, 1225 (9th Cir. 1988). Accordingly,

in reviewing Lingenfelter’s disability claim, we consider also those medical reports made after June 30, 1998, which were considered by both the

ALJ and the Appeals Council. 

LINGENFELTER v. ASTRUE 13437
impairments, including “degenerative joint disease of the left

knee, status post multiple surgeries, and post-polio syndrome.”

4

The ALJ also found, however, that Lingenfelter was not automatically presumed disabled at step three, because his condition did not meet or equal any of the impairments listed in 20

C.F.R., Pt. 4, Subpt. P, App. 1.5 The ALJ’s decision that Lingenfelter was not disabled therefore turned on his assessment

in between steps three and four of Lingenfelter’s residual

functional capacity (“RFC”), and application of this RFC

assessment at steps four and five. See 20 C.F.R.

§ 404.1520(4) (“Before we go from step three to step four, we

assess your residual functional capacity. . . . We use this

residual functional capacity assessment at both step four and

step five when we evaluate your claim at these steps.”). 

In assessing Lingenfelter’s RFC, the ALJ found that Lingenfelter retained the capacity to “lift 20 pounds occasionally

and 10 pounds frequently” and “stand and/or walk at least 2

hours . . . [and] sit 6 hours in an 8-hour workday,” but was

“unable to perform repetitive squatting, kneeling, crawling, or

crouching” and “requir[ed] the use of a cane for standing and

walking . . . [and] the option to stand every 30 minutes for a

period of 1-2 minutes in order to regain circulation and relieve

discomfort.” Although the ALJ recognized that Lingenfelter

testified to additional limitations that would establish a significantly lower RFC, he rejected this testimony as not “totally

credible.” Specifically, the ALJ found that Lingenfelter’s subjective complaints were only “credible to the extent that he

has required a cane and some accommodation with regard to

4The ALJ did not address the doctors’ other diagnoses, most notably

failing to mention any of the foot-related diagnoses, such as bilateral tibial

tendon rupture and tendinitis, bilateral advanced arthrosis and planovalgus

deformity, collapse of the left mid foot, and arthritis of the tarsometatarsal

joint. 

5Because we hold that Lingenfelter is entitled to an award of benefits

at step five, we do not address Lingenfelter’s alternate argument that the

ALJ erred at step three by not expressly considering a particular listed

impairment. 

13438 LINGENFELTER v. ASTRUE
his complaints of cramping and poor circulation in his lower

extremities.” The ALJ provided two reasons for this adverse

credibility finding: (1) “the consensus of medical opinion in

the record essentially supports a residual functional capacity

for sedentary work”; and (2) Lingenfelter’s nine weeks of

work in 1999 “cast significant doubt upon [his] allegation of

an inability to perform any work at all.” 

On the basis of this RFC assessment and the testimony of

a vocational expert, the ALJ found at step four that Lingenfelter was not capable of performing any of his past relevant

work as a construction worker, warehouse worker, or automobile detailer. The ALJ therefore proceeded to step five, where

he determined that Lingenfelter was not disabled because he

retained the capacity to perform other work that existed in

sufficient numbers in the national economy. In making this

determination, the ALJ posed to a vocational expert both a

hypothetical question based on the RFC that he assigned to

Lingenfelter and hypothetical questions that included the

additional limitations testified to by Lingenfelter. In response,

the vocational expert testified that a person with the RFC

assigned by the ALJ could perform almost a full range of sedentary work, but that sufficient jobs did not exist even at the

sedentary level for a person with the additional limitations

testified to by Lingenfelter. The expert testified that if an

employee needed to lie down two or three times a day for up

to 45 minutes, as Lingenfelter testified was necessary, that

“essentially would eliminate any of the positions described,

and in fact any of the positions at the sedentary level.”

6

6The vocational expert also testified, prior to addressing Lingenfelter’s

testimony that he needed to lie down two or three times a day, that the sedentary job base available to a person with the RFC assessed by the ALJ

would start to significantly erode if the hypothetical employee needed to

stand for one to two minutes every 15-20 minutes, instead of every 30

minutes as the ALJ found. Further, if the employee had to stand four to

five minutes every 30 minutes, there would be a “good 50 percent erosion” of the job base. Finally, if the employee needed to elevate his legs

beyond waist level, that “would be rather impractical,” and if the

employee had to elevate both legs the “job base could easily be eroded . . .

up to the 80 percent level.” 

LINGENFELTER v. ASTRUE 13439
II. Analysis

We review de novo a district court’s judgment upholding

the denial of social security benefits. Reddick, 157 F.3d at

720. “We may set aside a denial of benefits only if it is not

supported by substantial evidence or is based on legal error.”

Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir.

2006). “Substantial evidence” means more than a mere scintilla, but less than a preponderance; it is such relevant evidence as a reasonable person might accept as adequate to

support a conclusion. Id. If the evidence can reasonably support either affirming or reversing a decision, we may not substitute our judgment for that of the Commissioner. Id.

However, we must consider the entire record as a whole,

“weighing both the evidence that supports and the evidence

that detracts from the Commissioner’s conclusion,” Reddick,

157 F.3d at 720, and “may not affirm simply by isolating a

specific quantum of supporting evidence.” Hammock v.

Bowen, 879 F.2d 498, 501 (9th Cir. 1989) (internal quotation

marks omitted). 

Lingenfelter argues that substantial evidence does not support the ALJ’s decision because the ALJ improperly rejected

his testimony as to the severity of his pain and symptoms. We

agree. As we explain below, the ALJ failed to provide clear

and convincing reasons for finding Lingenfelter’s alleged pain

and symptoms not credible, and therefore was required to

include these limitations in his assessment of Lingenfelter’s

RFC. Because the ALJ clearly did not do so, substantial evidence does not support the ALJ’s RFC assessment or stepfive determination that Lingenfelter was not disabled. To the

contrary, the vocational expert’s testimony that sufficient jobs

did not exist for a person with the limitations testified to by

Lingenfelter required a finding at step five that Lingenfelter

was disabled during the relevant time period. Consequently,

further administrative proceedings are unnecessary, and Lingenfelter is entitled to an award of appropriate benefits.

13440 LINGENFELTER v. ASTRUE
A. Credibility

To determine whether a claimant’s testimony regarding

subjective pain or symptoms is credible, an ALJ must engage

in a two-step analysis. First, the ALJ must determine whether

the claimant has presented objective medical evidence of an

underlying impairment “which could reasonably be expected

to produce the pain or other symptoms alleged.” Bunnell v.

Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc) (internal

quotation marks omitted). The claimant, however, “need not

show that her impairment could reasonably be expected to

cause the severity of the symptom she has alleged; she need

only show that it could reasonably have caused some degree

of the symptom.” Smolen v. Chater, 80 F.3d 1273, 1282 (9th

Cir. 1996). “Thus, the ALJ may not reject subjective symptom

testimony . . . simply because there is no showing that the

impairment can reasonably produce the degree of symptom

alleged.” Id.; see also Reddick, 157 F.3d at 722 (“[T]he Commissioner may not discredit the claimant’s testimony as to the

severity of symptoms merely because they are unsupported by

objective medical evidence.”). 

Second, if the claimant meets this first test, and there is no

evidence of malingering, “the ALJ can reject the claimant’s

testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so.”

Smolen, 80 F.3d at 1281; see also Robbins, 466 F.3d at 883

(“[U]nless an ALJ makes a finding of malingering based on

affirmative evidence thereof, he or she may only find an

applicant not credible by making specific findings as to credibility and stating clear and convincing reasons for each.”). 

Here, the Commissioner concedes that Lingenfelter met the

requirement at step one, by providing evidence of underlying

impairments that could reasonably be expected to produce

some degree of the pain and symptoms alleged. Also, at step

two, the ALJ found that there was “no evidence of malingering.” The ALJ nonetheless found, however, that LingenLINGENFELTER v. ASTRUE 13441
felter’s testimony was credible only to the extent that he

testified that he needed a cane and some accommodation for

his cramping and poor circulation. As a result, the ALJ

excluded from his RFC determination Lingenfelter’s testimony that he could only stand or sit for about 15-20 minutes

at a time, had to lie down for 30-45 minutes at least three

times a day, and needed to keep his legs elevated every day,

because of his constant severe pain. 

We must therefore determine whether the ALJ provided

clear and convincing reasons for this adverse credibility finding. As noted, the ALJ provided two reasons for the finding.

First, the ALJ determined that Lingenfelter’s alleged symptoms, which would preclude even sedentary work, were contrary to a consensus of the medical opinion in the record that

he retained the capacity for such work. Similarly, the ALJ

determined that Lingenfelter’s ability to work for nine weeks

in 1999 was inconsistent with the alleged severity of his

symptoms. 

We conclude that these reasons do not constitute clear and

convincing reasons for rejecting Lingenfelter’s subjective

pain and symptom testimony. The ALJ’s first reason provides

no support for the credibility finding, because it is clear from

the record that there was not in fact a consensus of medical

opinion that Lingenfelter, contrary to his alleged pain and limitations, retained the capacity to perform sedentary work. The

ALJ’s second reason, on the other hand, was factually accurate, as Lingenfelter did testify that he worked for a brief

period of time in 1999. This reason in and of itself, however,

is not a sufficient basis for the ALJ’s adverse credibility finding. That Lingenfelter, after the relevant time period during

which he claimed to be disabled and facing difficult economic

circumstances, tried to work for nine weeks and, because of

his impairments, failed, is not a clear and convincing reason

for concluding that his symptoms could not have precluded

him from maintaining employment during the relevant time

period. 

13442 LINGENFELTER v. ASTRUE
1. Medical Opinion

[1] Contrary to the ALJ’s determination, there was not a

consensus of medical opinion that Lingenfelter retained the

capacity to perform sedentary work, and therefore this reason

does not support the ALJ’s credibility finding. In finding a

consensus, the ALJ cited to the three state agency physicians,

the two doctors who examined Lingenfelter for the California

Workers’ Compensation Appeals Board, and Dr. Ovadia, who

each made findings consistent with a capacity for sedentary

work.7 Without explanation, however, the ALJ completely

ignored the medical opinions of Lingenfelter’s two primary

treating physicians, who expressly corroborated his alleged

pain and limitations and found him incapable of any work. 

As discussed in detail above, knee specialist Dr. Caillouette

treated Lingenfelter for over three years. During this time, Dr.

Caillouette reported that Lingenfelter had severe pain in his

left knee and feet due to his numerous serious physical

impairments, and prescribed him Vicodin, a cane, and a

wheelchair for the pain. Dr. Caillouette expressly concluded

that Lingenfelter was “fully disabled from work” until he

received appropriate treatment: total knee replacement surgery.8

7Each of these doctors, however, still diagnosed serious medical impairments, and none expressly questioned Lingenfelter’s subjective complaints. See Gallant, 753 F.2d at 1455 (“[T]he record is replete with

objective clinical findings which support and confirm claimant’s allegations of severe and chronic pain. There was no positive evidence that

claimant was not suffering as much pain as he claimed to suffer.”). Indeed,

Dr. Smith, the only doctor to expressly assess Lingenfelter’s subjective

pain and symptoms other than his primary treating physicians, found them

to be objectively reasonable in light of his injuries. 

8Contrary to the dissent, we conclude that Dr. Caillouette’s opinion that

Lingenfelter was “fully disabled from work” is unambiguous. (Emphasis

added). Dr. Caillouette made this determination after finding that Lingenfelter “is now disabled in both lower extremities” and prescribing Lingenfelter a wheelchair for the “severe pain in his feet.” We also disagree with

the dissent’s characterization of Dr. Caillouette’s February 1998 statement

LINGENFELTER v. ASTRUE 13443
Similarly, foot specialist Dr. Tischler treated Lingenfelter for

about two years and determined that he was “totally disabled”

and “really unable to do any work that requires any sitting or

standing.” Dr. Tischler also reported that Lingenfelter was

“mostly in a wheelchair” by July 2000, and would be able to

return to sedentary work only if his total knee replacement

and triple arthrodesis surgeries were successful. 

[2] In light of these medical opinions, there was clearly no

consensus that Lingenfelter could perform sedentary work.

Rather, Doctors Caillouette and Tischler—the only reporting

physicians who examined Lingenfelter on multiple occasions

and treated his impairments9—expressly reached the opposite

conclusion, that Lingenfelter could not perform any work.

Consequently, the ALJ’s first reason for finding Lingenfelter’s testimony not credible is unfounded and does not provide any support for the adverse credibility finding.10

as “conclusory and inadequately supported by clinical findings.” In support of his opinion, Dr. Caillouette submitted more than 50 pages of medical reports and clinical findings based on three years of treatment and

objective physical evidence, including X-rays, lab tests, physical examinations, and the diagnostic surgery that Dr. Caillouette himself performed.

9The doctors upon whom the ALJ relied were either examining or

reviewing physicians, who did not treat Lingenfelter and examined him

either only once or not at all. See Reddick, 157 F.3d at 725 (“The opinions

of treating doctors should be given more weight than the opinions of doctors who do not treat the claimant.”). 

10It was also legal error for the ALJ to discount the opinions of Lingenfelter’s treating physicians without providing specific and legitimate reasons for doing so. See Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir.

2001) (“The ALJ may not reject the opinion of a treating physician, even

if it is contradicted by the opinions of other doctors, without providing

specific and legitimate reasons supported by substantial evidence in the

record.” (internal quotation marks omitted)). As we recently explained in

more detail in Orn v. Astrue, a treating physician’s opinion must be given

controlling weight if it is well-supported and not inconsistent with the

other substantial evidence in the record. 495 F.3d 625, 631-32 (9th Cir.

2007) (citing 20 C.F.R. § 404.1527(d)(2)); see also id. (holding that an

13444 LINGENFELTER v. ASTRUE
2. Work

[3] To the contrary, the ALJ’s second reason for finding

Lingenfelter’s testimony not credible was factually accurate,

because Lingenfelter testified that he worked for a brief

period of time in 1999. We conclude, however, that this alone

is not a clear and convincing reason for rejecting Lingenfelter’s subjective pain and symptom testimony. 

[4] It does not follow from the fact that a claimant tried to

work for a short period of time and, because of his impairments, failed, that he did not then experience pain and limitations severe enough to preclude him from maintaining

substantial gainful employment. Indeed, we have suggested

that similar evidence that a claimant tried to work and failed

actually supported his allegations of disabling pain. See Fair

v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989) (affirming the

examining physician’s opinion only constitutes substantial evidence if the

physician relied on “independent clinical findings that differ from the findings of the treating physician.” (internal quotation marks omitted)). Moreover, even if a treating physician’s opinion “is no longer entitled to

controlling weight” because there is “substantial evidence in the record”

contradicting the opinion, id. at 632 (internal quotation marks omitted),

the opinion is “still entitled to deference and must be weighed using all the

factors provided in 20 C.F.R. § 404.1527.” Id. (quoting S.S.R. 96-2p at 4

(Cum. Ed. 1996), available at 61 Fed. Reg. 34,490, 34,491 (July 2,

1996)); see also S.S.R. 96-2p at 4, 61 Fed. Reg. at 34,491 (“In many cases,

a treating source’s medical opinion will be entitled to the greatest weight

and should be adopted, even if it does not meet the test for controlling

weight.”). 

Of course, an ALJ cannot avoid these requirements simply by not mentioning the treating physician’s opinion and making findings contrary to

it. See Embrey v. Bowen, 849 F.2d 418, 422 n.3 (9th Cir. 1988) (“The ALJ

must either accept the opinions of [claimant’s] treating physicians or give

specific and legitimate reasons for rejecting them.”). Here, the ALJ only

briefly mentioned Dr. Caillouette, and did not mention his opinion that

Lingenfelter was fully disabled. The ALJ did not acknowledge Dr.

Tischler at all. 

LINGENFELTER v. ASTRUE 13445
ALJ’s finding that the claimant was not credible, but noting

that the ALJ “could easily have relied on other . . . evidence

in the record to reach the opposite conclusion. Fair attempted

to work in 1981, but testified that his pain forced him to

stop.”); see also Rosario v. Sullivan, 875 F. Supp. 142, 146

(E.D.N.Y. 1995) (holding that substantial evidence did not

support the ALJ’s decision that claimant was not disabled, in

part because claimant’s unsuccessful work attempt weighed in

favor of a disability finding); cf. Reddick, 157 F.3d at 722

(“Several courts, including this one, have recognized that disability claimants should not be penalized for attempting to

lead normal lives in the face of their limitations.”). 

This reason is especially unconvincing where, as the ALJ

recognized here, the individual attempted to work “only

because of extreme economic necessity.” Under these circumstances, it is at least as likely that the claimant tried to work

in spite of his symptoms, not because they were less severe

than alleged. As Lingenfelter testified, although he was able

to work for a brief period of time, he attempted to do so

because of his dire economic situation caused by almost six

years of unemployment; and, even then, his impairments were

severe enough that they prevented him from maintaining his

employment. 

[5] Moreover, Lingenfelter’s failed work attempt did not

even take place during the relevant time period. Lingenfelter

had to prove that he was disabled for at least a twelve-month

period between November 8, 1993 and June 30, 1998. His

work attempt, however, as the ALJ observed, started in February 1999, “years after his injury and surgeries, thus, presumably, only after years of healing.” Thus, here, the work

attempt provides even less support for rejecting Lingenfelter’s

testimony that his subjective symptoms precluded him working during the relevant time period. 

[6] In so concluding, we also find significant that the Social

Security Administration permits recipients of disability bene13446 LINGENFELTER v. ASTRUE
fits to work on a trial basis without the trial work period

adversely affecting their disability status. Specifically, when

a recipient works for less than nine months, the Administration does not consider the trial work period as evidence that

the individual is no longer disabled. See 20 C.F.R.

§ 404.1592; see also Moore v. Comm’r of the Soc. Sec.

Admin., 278 F.3d 920, 924-25 (9th Cir. 2002) (“[T]he SSA’s

regulations provide for a ‘trial work period’ in which a claimant may ‘test your ability to work and still be considered disabled.’ ” (quoting 20 C.F.R. § 404.1592)). By analogy, if

working for almost nine months is not evidence that a disability benefit recipient is no longer disabled, then a nine week

unsuccessful work attempt is surely not a clear and convincing reason for finding that a claimant is not credible regarding

the severity of his impairments. 

At least one of our sister circuits has also found the Administration’s treatment of trial work periods significant in

reviewing the denial of disability benefits. In Parish v. Califano, the claimant had taken a job within the time period during which she needed to establish that she was disabled, but

was asked to resign because “she could not work the hours.”

642 F.2d 188, 193 (6th Cir. 1981). The ALJ “relied heavily

on th[is] fact . . . as substantial evidence that [the claimant]

was not precluded from engaging in any substantial gainful

activity” during the relevant time period. Id. at 192. The Sixth

Circuit, however, looked for guidance in 20 C.F.R.

§ 404.1592: “[S]ervices rendered during the trial work period

are deemed not to have been rendered for the purpose of

determining whether the individual’s disability ceased during

such a period of trial work. It would appear reasonable to

apply the same principle to an attempt to work before filing

an application for benefits.” Id. at 193. As the Sixth Circuit

therefore concluded, the “[a]pproximately 32 weeks of work

over more than eight years during which [claimant] has been

suffering from [her impairment] can be characterized only as

sporadic, not [as] ‘substantial gainful activity’ . . . [, which]

LINGENFELTER v. ASTRUE 13447
implies employment with some degree of regularity.” Id. at

192. 

In sum, that Lingenfelter tried to work for nine weeks in

1999 and failed is not a clear and convincing reason for the

ALJ’s finding that Lingenfelter was not credible when he testified about the pain and symptoms that precluded him from

engaging in substantial gainful employment during the relevant time period. 

3. Other Factors

Finally, we consider the ALJ’s proffered reasons in light of

the other factors that we have found relevant in reviewing an

ALJ’s credibility findings, and which the Social Security

Administration also requires that ALJs consider in assessing

credibility. These additional factors include: (1) whether the

claimant engages in daily activities inconsistent with the

alleged symptoms; (2) whether the claimant takes medication

or undergoes other treatment for the symptoms; (3) whether

the claimant fails to follow, without adequate explanation, a

prescribed course of treatment; and (4) whether the alleged

symptoms are consistent with the medical evidence.11 See Rollins, 261 F.3d at 857; Bunnell, 947 F.2d at 346; Fair, 885

F.2d at 602-03; see also S.S.R. 96-7p at 3-4 (Cum. Ed. 1996),

available at 61 Fed. Reg. 34,483, 34,485 (July 2, 1996)

(requiring ALJs to consider “all of the evidence in the case

record” in assessing a claimant’s subjective pain and symptom testimony, including: the “individual’s daily activities”;

the “location, duration, frequency, and intensity of the pain or

symptoms”; “[f]actors that precipitate and aggravate the

symptoms”; the “type, dosage, effectiveness, and side effects”

of any medications; any other treatment or measures used for

relief; functional restrictions; and any other relevant factors).

11As noted, however, an ALJ cannot reject a claimant’s subjective pain

or symptom testimony simply because the alleged severity of the pain or

symptoms is not supported by objective medical evidence. See Reddick,

157 F.3d at 722. 

13448 LINGENFELTER v. ASTRUE
All of these factors weigh in favor of Lingenfelter. Lingenfelter testified that he engaged in almost no recreational activities or hobbies and only limited household activities. He

testified that he took prescription pain medicine twice a day,

and the medical record established that he had undergone

extensive additional treatment for his pain and symptoms,

including physical therapy and multiple surgeries. Also,

although Lingenfelter had not yet undergone the triple arthrodesis or total knee replacement surgeries at the time of the

hearing, he underwent the triple arthrodesis surgery shortly

after the hearing. Further, Doctors Caillouette and Tischler

confirmed in their reports that Lingenfelter’s insurance

refused to authorize the recommended surgeries at least from

1996 to 2000. Finally, the only doctors who expressly

assessed Lingenfelter’s reported symptoms concluded that

they were reasonable in light of the objective medical evidence. 

[7] Thus, considering Lingenfelter’s brief, unsuccessful

work attempt in light of the other factors relevant to his credibility, reinforces our conclusion that the work attempt alone

is not a clear and convincing reason for the ALJ’s finding that

Lingenfelter’s testimony about his pain and physical limitations was not credible. 

B. RFC Assessment and Step-Five Determination

[8] Because the ALJ did not provide clear and convincing

reasons for excluding Lingenfelter’s pain and symptoms from

his assessment of Lingenfelter’s RFC, substantial evidence

does not support the assessment. See Robbins, 466 F.3d at 883

(“In determining a claimant’s RFC, . . . ‘[c]areful consideration’ [must] be given to any evidence about symptoms

‘because subjective descriptions may indicate more severe

limitations or restrictions than can be shown by medical evidence alone.’ ” (quoting S.S.R. 96-8p at 5 (Cum. Ed. 1996),

available at 61 Fed. Reg. 34,474, 34,477 (July 2, 1996)). Nor

does substantial evidence support the ALJ’s step-five determiLINGENFELTER v. ASTRUE 13449
nation, since it was based on this erroneous RFC assessment.

See Gallant, 753 F.2d at 1456 (“Because . . . the ALJ had no

clear or convincing reasons for rejecting [claimant’s allegations of persistent disabling pain], claimant’s pain should

have formed a part of the ALJ’s question to the expert.”); see

also id. (“A hypothetical question should set out all of the

claimant’s impairments.” (alteration and internal quotation

marks omitted)). 

In addition, we will not remand for further proceedings

where, taking the claimant’s testimony as true, the ALJ would

clearly be required to award benefits:

In cases where there are no outstanding issues that

must be resolved before a proper disability determination can be made, and where it is clear from the

administrative record that the ALJ would be required

to award benefits if the claimant’s . . . testimony

were credited, we will not remand solely to allow the

ALJ to make specific findings regarding that testimony. Rather, we will . . . take that testimony to be

established as true. 

Varney v. Sec’y of Health & Human Servs., 859 F.2d 1396,

1401 (9th Cir. 1998). Here, as in Varney, the ALJ posed to the

vocational expert not only a hypothetical question based on

the ALJ’s RFC assessment, but also hypothetical questions

that incorporated the pain and physical limitations testified to

by Lingenfelter. Although the ALJ later decided that these

limitations were not credible, the vocational expert’s testimony establishes that taking Lingenfelter’s testimony as true,

he was disabled. Dispositively, the vocational expert testified

that, if an employee needed to lie down two or three times

each day for up to 45 minutes, as Lingenfelter testified was

necessary, this “essentially would eliminate any of the positions described, and in fact any of the positions at the sedentary level.” Cf. Gallant, 753 F.2d at 1454 (“A man who

cannot walk, stand or sit for over one hour without pain does

13450 LINGENFELTER v. ASTRUE
not have the capacity to do most jobs available in the national

economy.”). 

[9] In sum, we conclude that the ALJ did not provide clear

and convincing reasons for his adverse credibility determination. There was no consensus of medical opinion contrary to

Lingenfelter’s testimony, and his failed work attempt alone is

not a clear and convincing reason for rejecting his testimony,

especially in light of the record as a whole. Further, because

the vocational expert testified that Lingenfelter’s pain and

physical limitations would eliminate any potential employment, further proceedings are unnecessary, and we reverse the

judgment of the district court with instructions to remand to

the ALJ for the calculation and award of benefits.12

REVERSED AND REMANDED.

BEEZER, Circuit Judge, dissenting: 

The opinion of the Court fails to properly analyze the

ALJ’s assessment of Lingenfelter’s credibility. When evaluating the credibility of a claimant’s testimony, the ALJ has discretion to resolve conflicts between the opinions of examining

and treating physicians. The ALJ may be justified in discounting the value of Dr. Caillouette’s statements as to Lingenfelter’s ability to work. Additionally, when the treating

physicians’ statements are ambiguous, we must permit the

ALJ to interpret the statements, rather than adopting, de novo,

our own interpretation. 

12The dissent argues that it is necessary to remand Lingenfelter’s claims

for further proceedings because the ALJ might reject the medical opinions

of Lingenfelter’s primary treating physicians. We disagree. Further proceedings are unnecessary because the ALJ did not provide a legally sufficient basis for rejecting Lingenfelter’s testimony, which alone establishes

that he is entitled to benefits. 

LINGENFELTER v. ASTRUE 13451
I would reverse the judgment of the district court on the

narrow ground that the ALJ and the Appeals Council failed to

set forth specific, legitimate reasons for disregarding the treating physicians’ medical opinions. Rather than taking Lingenfelter’s testimony as true and remanding only for an award of

benefits, we should remand to the agency to enter specific

findings regarding the treating physicians’ medical opinions

and to develop a revised credibility determination based on

those findings.

I

When evaluating the medical opinions of treating and

examining physicians, the ALJ has discretion to weigh the

value of each of the various reports, to resolve conflicts in the

reports, and to determine which reports to credit and which to

reject. Although the opinions of treating physicians are given

deference, the ALJ may reject these opinions if, among other

reasons, (1) they are contradicted by the opinion of a nontreating physician, and (2) the ALJ makes “findings setting

forth specific, legitimate reasons for doing so that are based

on substantial evidence in the record.” Orn v. Astrue, ___

F.3d ___, No. 05-16181, 2007 WL 2034287, at *5 (9th Cir.

July 16, 2007); Thomas, 278 F.3d at 957. When an examining

physician provides independent clinical findings that differ

from the findings of the treating physician, such findings are

themselves “substantial evidence.” Orn, 2007 WL 2034287,

at *5; Thomas, 278 F.3d at 957; Andrews v. Shalala, 53 F.3d

1035, 1041 (9th Cir. 1995). Under these circumstances, “it is

then solely the province of the ALJ to resolve the conflict”

and to decide which medical opinions to credit. Andrews, 53

F.3d at 1041; see also Morgan v. Comm. of Soc. Sec. Admin.,

169 F.3d 595, 601 (9th Cir. 1999) (“Where medical reports

are inconclusive, ‘questions of credibility and resolution of

conflicts in the testimony are functions solely of the [Commissioner].’ ” (citing Sample v. Schweiker, 694 F.2d 639, 642

(9th Cir. 1982))). Additional factors relevant to evaluating any

medical opinion include the amount of relevant evidence that

13452 LINGENFELTER v. ASTRUE
supports the opinion, the quality of the explanation provided

in the opinion, and the consistency of the medical opinion

with the record as a whole. Orn, 2007 WL 2034287, at *4. 

We defer to an ALJ’s rational interpretation of conflicting

evidence even in the context of credibility determinations,

where the more rigorous “clear and convincing reasons” standard applies to the broader reasons that the ALJ is required to

provide for disbelieving a claimant’s subjective testimony.1

See Burch, 400 F.3d at 680-81 (stating, in a case where the

ALJ interpreted evidence in the context of making a credibility determination, “[w]e must uphold the ALJ’s decision

where the evidence is susceptible to more than one rational

interpretation”); Johnson v. Shalala, 60 F.3d 1428, 1434 (9th

Cir. 1995) (“We will not reverse credibility determinations of

an ALJ based on contradictory or ambiguous evidence.”). 

In this case the medical evidence is contradictory, but

weighs in favor of Lingenfelter’s ability to perform sedentary

work. On the one hand, a series of examining physicians

found at various times throughout the insured period, based

on thorough and independent clinical findings, that Lingenfelter was capable of performing sedentary work.2

 On the

1The “clear and convincing reasons” standard applies to the reasons the

ALJ must provide for disbelieving the credibility of the claimant’s testimony. See Morgan, 169 F.3d at 599. Here, these reasons include the significant weight of the medical opinion in this case, which, as discussed in

the subsequent footnote, contradicts Lingenfelter’s testimony that he must

lie down frequently every day and elevate and ice his feet repeatedly during the day. The “specific, legitimate reasons” standard applies to the reasons the ALJ must give for disregarding the opinions of treating

physicians, such as Dr. Caillouette and Dr. Tischler, when determining

what the weight of the medical opinion says in a particular case. 

2

In February 1995, Dr. Ovadia stated under “work restrictions” that Lingenfelter should be precluded only from prolonged standing and walking,

running or jumping. In April 1997, Dr. Woods stated that Lingenfelter was

limited to “semi-sedentary work.” In February 1998, Dr. Sung found that

Lingenfelter had the capacity to sit for a full day, walk around the office,

LINGENFELTER v. ASTRUE 13453
other hand, the only medical evidence stating that Lingenfelter is fully disabled from all types of work comes from Lingenfelter’s two treating physicians, Dr. Caillouette and Dr.

Tischler. These physicians’ opinions are not decisive, and Dr.

Caillouette’s opinion is ambiguous and inadequately supported by clinical findings, as discussed below. Given the

overall weight of the evidence, the ALJ would be within his

discretion to credit the medical opinions of the four examining physicians while discrediting or rejecting the conclusions

of Drs. Caillouette and Tischler. 

II

Lingenfelter’s first treating physician, Dr. Caillouette,

stated in February 1998 that Lingenfelter was “fully disabled

from work.” The opinion of the Court interprets this to mean

“fully disabled from all types of work,” rather than “fully disabled from his work as a heavy laborer.” The exact meaning

of Dr. Caillouette’s statement is ambiguous, however, and the

statement may not be inconsistent with the examining physicians’ opinions stating that Lingenfelter was capable of sedentary work. As such, it is within the discretion of the ALJ to

interpret the statement and resolve the ambiguity. 

On September 4, 1996, Dr. Caillouette noted that “Lingenfelter essentially works as a heavy laborer,” and concluded

that he had “a complete loss of pre-injury work capacity.”

Lingenfelter’s pre-injury work as a heavy laborer included

carrying up to 100 pounds, and carrying 50 to 75 pounds on

and lift up to 10 pounds frequently. In March 1998, Dr. Green conducted

a thorough examination of Lingenfelter’s medical record and performed a

physical exam, and agreed with Dr. Ovadia’s opinion of the extent of Lingenfelter’s disability. In addition, a non-examining physician, Dr. Mebane,

concluded after a thorough review of Lingenfelter’s medical record that

Lingenfelter could sit about 6 hours in an 8-hour workday, stand or walk

for at least two hours in an 8-hour workday, and lift up to 10 pounds frequently. 

13454 LINGENFELTER v. ASTRUE
a relatively frequent basis. Dr. Caillouette stated that same

day that Lingenfelter was “temporarily disabled from heavy

work as a laborer, and I do not anticipate his disability status

changing until he has undergone further surgery.” On November 15, 1996, Dr. Caillouette wrote that Lingenfelter “will

either need an osteotomy of the leg or total knee arthoplasty

in the near future in order to restore him to his ability to

work.” Both these procedures require surgery. Given that this

statement comes only two months after the report stating that

Lingenfelter will be disabled from heavy work as a laborer

until he has surgery, it would be reasonable to conclude that

Dr. Caillouette’s reference to Lingenfelter’s “ability to work”

here means his ability to work as a heavy laborer. 

On January 14, 1998, Dr. Caillouette stated that Lingenfelter was “still temporarily disabled from work.” The word

“still” connotes a continuation of a certain level of disability,

rather than an increase in a patient’s level of disability. There

is nothing in the record indicating any determination by Dr.

Caillouette between November 1996 and January 1998 that

Lingenfelter was disabled from all work, and it would be

unusual for a physician to make such a significant change in

a patient’s disability assessment without any written record of

the change, and without any clinical findings to support the

change. It would be reasonable to infer that “still temporarily

disabled from work” refers back to Dr. Caillouette’s 1996

statements of disability, the only other references in the record

of Dr. Caillouette’s assessment of Lingenfelter’s ability to

work. This inference is supported by the fact that Dr. Caillouette previously used the general term “ability to work” to

likely mean “ability to work as a heavy laborer.” Given this

context, the February 1998 statement “fully disabled from

work” (coming less than a month after the January 14 statement) is, at best, ambiguous. It could reasonably be read as

meaning “fully disabled from work as a heavy laborer” or

“fully disabled from all work.”

3

3Other facts in the record support the opinion of the Court’s conclusion

that Dr. Caillouette believed Lingenfelter to be disabled from all types of

LINGENFELTER v. ASTRUE 13455
The ambiguity in Dr. Caillouette’s February 1998 statement

requires us to remand the case to the agency for an appropriate interpretation of the statement. If the interpretation of Dr.

Caillouette’s statement would affect the ALJ’s appraisal of

Lingenfelter’s credibility, we should allow the ALJ to further

develop the record. See Tonapetyan v. Halter, 242 F.3d 1144,

1150 (9th Cir. 2001); Smolen v. Chater, 80 F.3d 1273, 1288

(9th Cir. 1996). If the ALJ makes the same credibility finding

regardless of the interpretation of Dr. Caillouette’s ambiguous

statement, then additional development of the record would

be unnecessary. In either case, we must give deference to the

ALJ’s interpretation of the ambiguous evidence, even in the

context of credibility determinations, see Burch v. Barnhart,

400 F.3d 676, 680-81 (9th Cir. 2005) (“[W]e must uphold the

ALJ’s decision where the evidence is susceptible to more than

one rational interpretation.”), and we should not seek to fill

the fact-finding role of the ALJ by developing, de novo, our

own interpretation of Dr. Caillouette’s ambiguous statement,

see INS v. Ventura, 537 U.S. 12, 16 (2002) (per curiam) (“A

court of appeals ‘is not generally empowered to conduct a de

novo inquiry into the matter being reviewed and to reach its

own conclusions based on such an inquiry.’ ”) (citation omitted). 

III

Even if the ALJ determines that Dr. Caillouette did find

Lingenfelter completely disabled from all work in February

1998, the ALJ is not obligated to consider the doctor’s statework by 1998. Lingenfelter revisited Dr. Caillouette with a “new problem”

in November 1996—the “sudden onset of right foot pain.” Dr. Caillouette

stated that Lingenfelter had “severe pain” in his feet on two occasions in

the fall of 1997, and prescribed a wheelchair for Lingenfelter in October

1997. I do not adopt any specific interpretation of Dr. Caillouette’s statement. I only contend that there is more than one reasonable interpretation

of the statement, and that it is not our prerogative to adopt, de novo, our

own interpretation. 

13456 LINGENFELTER v. ASTRUE
ment as evidence discounting the statements of Lingenfelter’s

examining physicians. When evaluating conflicting medical

opinions, “the ALJ need not accept the opinion of any physician, including a treating physician, if that opinion is brief,

conclusory, and inadequately supported by clinical findings.”

Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). Dr.

Caillouette’s 1998 statements regarding Lingenfelter’s disability status are brief, conclusory and inadequately supported

by clinical findings that would indicate a change in Lingenfelter’s condition between 1996 and 1998.4

 If the ALJ interpreted Dr. Caillouette’s 1998 statements as finding

Lingenfelter to be disabled from all types of work, the ALJ

could evaluate this evidence as conclusory and inadequately

supported by clinical findings, and to the contrary accept the

medical opinions of Lingenfelter’s examining physicians.

IV

Although we give the ALJ broad discretion to weigh conflicting medical evidence when determining a claimant’s

credibility, the judgment of the district court must be reversed

in this case. The ALJ and the Appeals Council did not articulate “specific, legitimate reasons” for disregarding the medical

opinions of Lingenfelter’s treating physicians. Our precedent

4The opinion of the Court states that Dr. Caillouette submitted more

than 50 pages of medical reports and clinical findings to support his February 1998 opinion that Lingenfelter was disabled from all work. I disagree with this characterization of the record. The lab tests and

postoperative surgery report in the record from Dr. Caillouette all date

from June 1996 or earlier, before Dr. Caillouette’s September 1996 report

finding Lingenfelter to be disabled only from heavy work as a laborer.

They provide no support for Dr. Caillouette’s revised February 1998

assessment of Lingenfelter’s disability. The findings from Dr. Caillouette

in the record after 1996 up through February 1998 primarily consist of

brief statements reporting Lingenfelter’s subjective level of pain. A claimant’s subjective complaints form an inadequate basis for a physician’s

finding of disability. See Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th

Cir. 2005). Dr. Caillouette’s clinical findings are, in my view, inadequate

to support his revised 1998 assessment of Lingenfelter’s disability. 

LINGENFELTER v. ASTRUE 13457
is clear that, “[e]ven if the treating doctor’s opinion is contradicted by another doctor, the ALJ may not reject this opinion

without providing ‘specific and legitimate reasons’ ” for

doing so that are “supported by substantial evidence in the

record.” Orn, 1997 WL 2034287, at *6 (citation omitted); see

also Thomas, 278 F.3d at 957; Tonapetyan, 242 F.3d at 1148.

The decision of an ALJ fails this test when the ALJ completely ignores or neglects to mention a treating physician’s

medical opinion that is relevant to the medical evidence being

discussed. See Cotton v. Bowen, 799 F.2d 1403, 1408 (9th

Cir. 1986). Such cases should be remanded to the agency for

proper consideration of the evidence. See id. at 1408-09.

V

The opinion of the Court concludes that Lingenfelter is

entitled to an award of benefits under the Smolen test. The test

states that the district court should credit evidence or testimony that was rejected during the administrative process and

remand for an immediate award of benefits where: “(1) the

ALJ has failed to provide legally sufficient reasons for rejecting such evidence, (2) there are no outstanding issues that

must be resolved before a determination of disability can be

made, and (3) it is clear from the record that the ALJ would

be required to find the claimant disabled were such evidence

credited.” Smolen, 80 F.3d at 1292. 

The Smolen test does not apply here because there are “outstanding issues that must be resolved before a determination

of disability can be made.” As stated above, Dr. Caillouette’s

statement regarding Lingenfelter’s disability is ambiguous,

and it is exclusively within the province of the ALJ to interpret ambiguous evidence. A remand to the agency is required

so that the ALJ may either interpret Dr. Caillouette’s statement or hold additional hearings to determine the proper

interpretation. 

We have generally applied the Smolen test only in cases

where the evidence in the record strongly supports a finding

13458 LINGENFELTER v. ASTRUE
of disability. See, e.g., Benecke v. Barnhart, 379 F.3d 587,

595 (9th Cir. 2004) (finding that, despite the finding of no disability by the ALJ, the record “clearly establishes that [claimant] cannot perform a sedentary job”); McCartey v.

Massanari, 298 F.3d 1072, 1076-77 (9th Cir. 2002) (stating

that the VA rating of disability, which the ALJ did not consider, was supported by several hundred pages of medical

records and must be given “great weight”; hence “a finding of

disability is clearly required”); Smolen, 80 F.3d at 1291-92

(noting that the claimant offered “extensive testimony” that

was supported by two physicians’ opinions and the rest of the

record, and that “the overwhelming evidence . . . required the

ALJ to find [claimant] disabled”); Swenson v. Sullivan, 876

F.2d 683, 688 (9th Cir. 1989) (finding that the claimant’s testimony “was supported by substantial medical evidence,” and

that the only expert testified that the claimant would not be

able to engage in any work). In this case, to the contrary, the

weight of the medical evidence in the record contradicts both

the degree of Lingenfelter’s claimed disability and the medical opinions of Lingenfelter’s treating physicians. The Smolen

test was designed to expedite the resolution of disability

applicants’ claims, but should not be employed in cases where

it would be likely to result in the wrongful award of benefits.

Cf. Varney v. Sec’y of Health & Human Servs., 859 F.2d

1396, 1399 (9th Cir. 1988). 

Even if the Smolen test were applicable here, our precedents establish that we are not required to use the test in all

cases where it applies. Rather, we have discretion in such

cases to remand to the agency to make further credibility findings. Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003);

see Nguyen v. Chater, 100 F.3d 1462, 1466-67 (9th Cir.

1996); Byrnes v. Shalala, 60 F.3d 639, 642 (9th Cir. 1995);

Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993); Bunnell

v. Sullivan, 947 F.2d 341, 348 (9th Cir. 1991) (en banc)

(affirming the district court decision remanding the case to the

agency). In this case, I would remand to the agency for further

LINGENFELTER v. ASTRUE 13459
credibility findings, given that the weight of the medical evidence contradicts Lingenfelter’s claim of complete disability.

VI

I would reverse the judgment of the district court and

remand to the district court with instructions to remand to the

Commissioner of the Social Security Administration for further administrative proceedings consistent with this dissent.

13460 LINGENFELTER v. ASTRUE