FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BERNARD LABORIN,

Plaintiff-Appellant,

v.

NANCY A. BERRYHILL, Acting

Commissioner of Social Security,

Defendant-Appellee.

No. 15-15776

D.C. No.

2:13-cv-02167-

MHB

OPINION

Appeal from the United States District Court

for the District of Arizona

Michelle H. Burns, Magistrate Judge, Presiding

Argued and Submitted March 14, 2017

San Francisco, California

Filed August 16, 2017

Before: Stephen S. Trott, Kim McLane Wardlaw,

and Ronald M. Gould, Circuit Judges.

Opinion by Judge Gould
2 LABORIN V. BERRYHILL

SUMMARY*

Social Security

The panel reversed the district court’s judgment 

affirming the administrative law judge’s (“ALJ”) denial of 

Bernard Laborin’s applications for disability benefits and 

supplemental security income under Titles II and XVI of the 

Social Security Act.

The ALJ did not credit Laborin’s testimony regarding the 

intensity, persistence, and limiting effects of his symptoms 

to the extent that testimony was “inconsistent with the above 

residual functional capacity assessment [(RFC)].”

The panel held that this boilerplate language encouraged 

an inaccurate assessment of a claimant’s credibility and also 

permitted determination of RFCs that were inconsistent with 

truly credible testimony. The panel further held that the 

approach taken by the ALJ was inconsistent with the Social 

Security Act and should not be used in disability decisions. 

The panel held that the ALJ’s analysis was also illogical: 

because the claimant’s symptom testimony must be taken 

into account when the ALJ assesses the claimant’s RFC, it 

cannot be discredited because it is inconsistent with that 

RFC. The panel noted that inclusion of the flawed 

boilerplate language, was not by itself, reversible error and 

could be harmless. 

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

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

Because the ALJ did not give clear and convincing 

reasons for rejecting Laborin’s symptom testimony, and for 

the reasons provided in a concurrently filed memorandum 

disposition, the panel reversed and remanded.

COUNSEL

Eric G. Slepian (argued), Phoenix, Arizona, for PlaintiffAppellant.

Brian Baak (argued), Special Assistant United States 

Attorney; John Jay Lee, Regional Chief Counsel; Office of 

the General Counsel, Social Security Administration,

Denver, Colorado; for Defendant-Appellee.

OPINION

GOULD, Circuit Judge:

Bernard Laborin appeals the district court’s judgment 

affirming an administrative law judge’s (ALJ) denial of his 

applications for disability benefits and supplemental security 

income under Title II and Title XVI of the Social Security 

Act, 42 U.S.C. §§ 301–1397mm. The ALJ did not credit 

Laborin’s testimony regarding the intensity, persistence, and 

limiting effects of his symptoms to the extent that testimony 

was “inconsistent with the above residual functional 

capacity assessment [(RFC)].”1 This boilerplate statement 

 1

 The ALJ’s statement reads in full:

After careful consideration of the evidence, the 

undersigned finds that the claimant’s medically 
4 LABORIN V. BERRYHILL

encourages an inaccurate assessment of a claimant’s 

credibility and also permits determination of RFCs that are 

inconsistent with truly credible testimony. The approach 

taken by the ALJ was inconsistent with the Social Security 

Act and should not be used in disability decisions. Because 

the ALJ also did not give clear and convincing reasons for 

rejecting Laborin’s symptom testimony, and for the reasons 

provided in the concurrently filed memorandum disposition, 

we reverse and remand.2

The “RFC is an administrative assessment of the extent 

to which an individual’s medically determinable 

 

determinable impairments could reasonably be 

expected to cause the alleged symptoms; however, the 

claimant’s statements concerning the intensity, 

persistence and limiting effects of these symptoms are 

not credited to the extent they are inconsistent with the 

above residual functional capacity.

The ALJ found that Laborin had the residual functional capacity to:

frequently lift and carry 20 pounds occasionally and 

10 pounds frequently; stand and/or walk with normal 

breaks about four out of eight hours; sit with normal 

breaks about six out of eight hours; never push or pull 

with the right lower extremity; never climb ladders, 

ropes, or scaffolds; occasionally crawl; and frequently 

climb ramps or stairs. The claimant must avoid 

concentrated exposure to fumes, odors, dust, gases, 

poor ventilation, and unprotected heights. The 

claimant must avoid exposure to moving machinery. 

He needs to sit/stand at will.

2

 We address Laborin’s other challenges to the ALJ’s decision—

including additional challenges to the ALJ’s credibility determination—

in the concurrently filed memorandum disposition.
LABORIN V. BERRYHILL 5

impairment(s), including any related symptoms, such as 

pain, may cause physical or mental limitations or restrictions 

that may affect his or her capacity to do work-related 

physical and mental activities.” SSR 96-8p, 61 Fed. Reg. 

34474, 34475 (July 2, 1996).3 It “is the most [a claimant] 

can still do despite [his or her] limitations.” 20 C.F.R. 

§ 416.945(a)(1).

When an individual does not have a severe medical 

impairment that meets or equals one of the listed 

impairments, the scope of the RFC plays a crucial role in the 

ALJ’s determination of whether an individual is disabled and 

entitled to benefits under the Social Security Act. See 

generally id. § 416.920(a)(4) (describing the five-step 

sequential evaluation process); SSR 96-8p, 61 Fed. Reg. 

34474 (explaining the RFC). The ALJ assesses a claimant’s 

RFC between steps three and four of the five-step sequential 

evaluation process used for disability determinations. See

20 C.F.R. § 416.920(a)(4). The RFC is first used at step four 

to determine whether an individual can do relevant past 

work. Id. § 416.920(a)(4)(iv). If the claimant cannot do 

relevant past work, the RFC is then used again at step five—

along with the claimant’s age, education, and work 

experience—to determine whether the claimant “can make 

an adjustment to other work.” Id. § 416.920(a)(4)(iv)–(v). 

If the claimant can do other work, the claimant is found to 

be not disabled. See id. § 416.920(a)(v).

 3 “[Social Security Rulings] 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.” 

Massachi v. Astrue, 486 F.3d 1149, 1152 n.6 (9th Cir. 2007) (alterations 

in original) (quoting Avenetti v. Barnhart, 456 F.3d 1122, 1124 (9th Cir. 

2006)).
6 LABORIN V. BERRYHILL

The ALJ assesses a claimant’s RFC “based on all the 

relevant evidence in [the] case record.” Id. § 416.945(a)(1). 

The ALJ must consider both the medical evidence and 

“descriptions and observations of [the claimant’s] 

limitations from [the claimant’s] impairment(s), including 

limitations that result from [the claimant’s] symptoms, such 

as pain, provided by” the claimant, family, friends, and other 

people. Id. § 416.945(a)(3). The RFC assessment must 

“[c]ontain a thorough discussion and analysis of the 

objective medical and other evidence, including the 

individual’s complaints of pain and other symptoms and the 

adjudicator’s personal observations, if appropriate.” SSR 

96-8p, 61 Fed. Reg. at 34478 (emphasis added). In other 

words, the ALJ must take “the claimant’s subjective 

experiences of pain” into account when determining the 

RFC. Garrison v. Colvin, 759 F.3d 995, 1011 (9th Cir. 

2014); see also Lingenfelter v. Astrue, 504 F.3d 1028, 1035 

(9th Cir. 2007) (“[T]he ALJ failed to provide clear and 

convincing reasons for finding [the claimant’s] alleged pain 

and symptoms not credible, and therefore was required to 

include these limitations in his assessment of [the 

claimant’s] RFC.”).4

 4 We do not suggest that, in assessing the RFC, the ALJ must always 

accept the claimant’s statements as to the severity and limiting effects of 

his or her symptoms as true. The claimant’s “credibility . . . cannot be 

ignored in determining [the claimant’s] ability to work ([the claimant’s] 

residual functional capacity, in [Social Security Administration]-

speak).” Bjornson v. Astrue, 671 F.3d 640, 646 (7th Cir. 2012). The 

ALJ must evaluate the credibility of the claimant’s symptom testimony 

so that the ALJ can take that testimony—insofar as it is credible—into

account as part of the RFC assessment. See Lingenfelter, 504 F.3d at 

1035. The ALJ cannot, however, properly evaluate the claimant’s 

credibility based on a predetermined RFC.
LABORIN V. BERRYHILL 7

Despite this clear directive from the regulations, Social 

Security Rulings, and our case law, which all require ALJs 

to take the claimant’s symptom testimony into account in 

determining the RFC, ALJs with frequency include the 

boilerplate language discrediting the claimant’s symptom 

testimony because it is “inconsistent with” the RFC in their 

disability determinations. See, e.g., Treichler v. Comm’r of 

Soc. Sec. Admin., 775 F.3d 1090, 1103 (9th Cir. 2014). By 

doing so, the ALJ indicates that he or she did not properly 

“incorporate a claimant’s testimony regarding subjective 

symptoms and pain into the RFC finding, as [he or she] is 

required to do.” Trevizo v. Berryhill, 862 F.3d 987, 1000 n.6 

(9th Cir. 2017); see also Mascio v. Colvin, 780 F.3d 632, 639 

(4th Cir. 2015) (holding that this boilerplate language 

conflicts with the regulations and rulings). This practice 

“inverts the responsibility of an ALJ, which is first to 

determine the medical impairments of a claimant based on 

the record and the claimant’s credible symptom testimony 

and only then to determine the claimant’s RFC.” Trevizo, 

862 F.3d at 1000 n.6.

Not only does the ALJ err by discrediting symptom 

testimony to the extent it is inconsistent with an RFC, but the 

ALJ’s analysis is also illogical. Because the claimant’s 

symptom testimony must be taken into account when the 

ALJ assesses the claimant’s RFC, it cannot be discredited 

because it is inconsistent with that RFC. By discrediting a 

claimant’s “statements concerning the intensity, persistence 

and limiting effects of [the claimant’s] symptoms . . . to the 

extent they are inconsistent with the” RFC, the ALJ puts the 

cart before the horse.

We are not the first circuit to recognize that this 

boilerplate language is problematic. Both the Seventh and 

the Fourth Circuits have concluded that it is incorrect as a 
8 LABORIN V. BERRYHILL

matter of law. See Filus v. Astrue, 694 F.3d 863, 868 (7th 

Cir. 2012) (noting that finding a claimant’s symptom 

testimony is not credible to the extent it is inconsistent with 

an RFC “puts the cart before the horse, in the sense that the 

determination of capacity must be based on the evidence, 

including the claimant’s testimony, rather than forcing the 

testimony into a foregone conclusion”); Bjornson v. Astrue, 

671 F.3d 640, 645 (7th Cir. 2012) (noting that this 

boilerplate language “gets things backwards”); Mascio, 

780 F.3d at 639 (concluding the boilerplate language “‘gets 

things backwards’ by implying ‘that ability to work is 

determined first and is then used to determine the claimant’s 

credibility’” (quoting Bjornson, 671 F.3d at 645)). This 

improper procedure both inverts and subverts the way an 

RFC must be determined relying on credible evidence, 

including credible testimony.

Like our sister circuits, we have stated that inclusion of 

this flawed boilerplate language is not, by itself, reversible 

error and can be harmless. See Trevizo, 862 F.3d at 1000 

n.6; Mascio, 780 F.3d at 639; Filus, 694 F.3d at 868. It does 

not, however, add anything to the ALJ’s determination of 

either the RFC or the claimant’s credibility. We cannot infer 

from this language “that the ALJ rejected [the claimant’s] 

testimony to the extent it conflicted with [the] medical 

evidence.” Treichler, 775 F.3d at 1103. To discredit a 

claimant’s symptom testimony when the claimant has 

provided objective medical evidence of the impairments 

which might reasonably produce the symptoms or pain 

alleged and there is no evidence of malingering, the ALJ 

must give “specific, clear, and convincing reasons for 

rejecting” the testimony by identifying “which testimony 

[the ALJ] found not credible” and explaining “which

evidence contradicted that testimony.” Brown-Hunter v. 
LABORIN V. BERRYHILL 9

Colvin, 806 F.3d 487, 489, 494 (9th Cir. 2015). This 

boilerplate language does neither.

As we elaborate in the concurrently filed memorandum 

disposition, here the ALJ did not give clear and convincing 

reasons for rejecting Laborin’s testimony regarding the 

severity of his pain. The ALJ’s inclusion of the boilerplate 

statement does not save her decision.

REVERSED and REMANDED.