F OR P UBLICATION



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

E M I L Y A T T M O R

E , Plaintiff-Appellant

,

v.

C A R O L Y N W

. C O L

V I N , Acting Commissioner of Social Security

,

Defendant-Appellee. No. 13-36048

D.C. No. 3:12-cv-00704-HU

OPI NI ON

A ppeal from the United States District Court for the District of Oreg on Michael H. Simon, District J udg e, Presiding

Arg u ed and Submitted November 3, 2015

Portland, Oreg on

F iled J une 30, 2016

B e fore: Ray

mond C. F isher, Marsha S. B erz on and Paul J . W atford, Circuit J udg es.

O pinion by

J udg e F isherA T T M O R E V

. C O L

V I N 2

SUMMARY *

Social Security

The panel reversed the district court’s summary judg ment in a Social Security case in which an a dministrative law judg e found in a sing le decision that a disability b e n e f i ts claimant

was disabled f

or a c losed period b ut h ad since medically improved.

The panel held that in a closed period case, t h e AL J should c ompare the medical evidence used to determine that the c laimant was disabled w ith the medical evidence ex isting
at the time of asserted medical improvement. The panel h eld that the AL J in this c a se made the appropriate co mparison, but substantial evidence d id n ot support the A L J ’s finding o f medical improvement. The panel r emanded th e ca s e to the district court with instructions to remand it to the AL J to calculate an award of benefits.

COUNSEL

Max Rae (arg

ued), Salem, Oreg on, for Plaintiff-Appellant.

J effrey Staples (arg

ued) and Nancy A

. Mishalanie, Assistant Reg ional Counsel; David Morado, Reg ional Chief C o u n sel; Social Security Administration, Office of the General Counsel, Seattle, W ashing ton; for Defendant-Appellee.

* T h is su m m ary co n stitu

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

co u rt staf

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

th e read er.A T T M O R E V

. C O L

V I N 3

OP INION

F I SHER, Circuit J udg e :

A Social Security disability benefits claimant is no long er entitled to benefits w hen substantial e vidence demonstrates (1) “ th e re has been any medical improvement in the [ claimant’s] impairment” and (2) the claimant “is now a ble to eng ag e in substantial g a inful activity .” 42 U.S.C. § 423(f)(1). To determine whether there has been medical improvement,

an administrative law judg e (AL J ) must “compare the current medical severity ” of the claimant’s impairment to the medical severity of the impairment “at the time of th e most recent favorable medical decision that [ the c laimant] w[ as] disabled

or continued to be disabled.” 20 C.F .R. § 4 0 4

. 1 5 94(b)(7). This appeal addresses the q u e s t i o n of how an AL J should determine w hether medical improvement has occurred in soc alled “closed period” cases – i.e.
, where the AL J finds in a single decision that the claimant w as disa b l ed for a closed period of time but has since medically improved.

W e conclude that in closed p eriod cases an AL J should
compare t h e medical evidence used to determine that the claimant was d isabled with the medical evidence ex isting at the time of asserted medical improvement. Althoug h the AL J in this case made the appropriate comparison, substantial

e v idence does not support the AL J ’s finding of me d i c al improvement. W e therefore reverse the judg ment a nd remand with instructions to r e m a nd this case to the AL J to calculate an award of benefits.A T T M O R E V

. C O L

V I N 4

I

This appeal concerns an AL J ’s award of soci al security disability benefits to Em i l y A ttmore, who applied for disability benefits in October 2008. After the ag ency denied Attmore’s claim for be n ef its, an A L J held a hearing in J uly 2010 and determined that, due to her bipolar disorder, Attmore was disabled a s of April 15, 2007, but had medically improved to the point she was no long er disabled b e ginning

on March 24, 2009. I n making these finding s, the AL J considered the following

medical evidence.

Attmo re w a s last g ainfully employ ed on April 13, 2007, when she quit h er job after a series of breakdowns that prevented her from g etting o u t o f bed. I n 2008, she was hospitaliz ed t h r e e t imes because o f her bipolar disorder. I n May
, she was hospitaliz e d for tw o weeks after a suicide attempt during which she reported hearing voices a nd hallucinating

. Althoug h she “initially di d well” after her release, she beg an to hallucinate and became r estless a fter she reduced her medications or stopped ta k i n g them altog ether. I n Aug u st, she was hospitaliz ed ag ain for one we ek a f t er

ex p erie n c ing hallucinations and “ex treme paranoia.” I n October, she ex perienced “situational problems related to [ a] sig nificant other,” ag a in w ent o ff h e r m edications a nd stopped sleeping , and was hospitaliz ed a third time after she

was f ound wandering around and responding to voices in her he ad

. Upon her release one month later, Attmore b eg an seeing psy c hiatrist D r. Robert M. W olf, as well as one o f her former therapists.

Dr. W olf’s treatment n otes report mix ed prog ress over the

nex t y ear. On N ovember 10, 2008, for ex ample, Attmore was “strug g ling ” a

nd “ex p ressing some p aranoid ideas,” but twoA T T M O R E V

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V I N 5

weeks later said she was “doing well,” and Dr. W olf r eported her mental state was “fairly stable.” Similarly

, o n F ebruary 13, 2009, thoug h Attmore seemed “quite stable,” she r eported she had been “pretty depressed” for several weeks, ex hibiting “social isolation, sleeping a l o t

. ” B y March 5, she said she

was still “ s o m ewhat socially isolative,” but otherwise “feeling much better,” and Dr. W o lf noted she was “actually doing well.” On March 23 – the f inal day t h e A L J f

ound Attmore was disabled – she ag ain said she was “feeling pretty well” with “no specific complaints,” b ut one week later she told another therapist she had been “stay ing in her apartment for [ d] ay s at a time, not leaving and not g etting dressed.” She

e x perienced a g radual worsening of h er sy mptoms f

r o m Aug ust throug h October as she inc r easing ly strug g led with depression.

Attmore ’s prog ress in 2010 likewise was mix ed. I n F ebruary

, she beg a

n working with a c l i n i c al social worker who ag r eed to drive her to appointments because she “d[ id] n’t feel comfortable riding public transp o rtation.” On Fe b r u ary 26, Attmore told her new doctor she was “do i n g well” and spoke of starting school, but continued to complain of heig htened anx iety when there were “other stresses in her life.” Althoug h she “endorse[ d] satisfaction with her life” in

e arly March, by late March she said she w as g ettin g depressed, a

nd had another e p isode during which she heard voices and slept for 19 hours. I n April, her sy mptoms flared
up two mor e t i mes, causing increased depression and poor sleep for one week.

B a sed on this med i cal evidence, the AL J determined Attmore was disabled between April 15, 2007 a nd March 23, 2009. At issue here is the AL J ’s medical improvement finding

, which rested on two c onclusions. T h e A L J firstA T T M O R E V

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V I N 6

detailed Dr. W olf’s treatment notes from March 23, 2009 a nd conclu d e d Attmore had “benefited from mental health
treatment and medicati o n manag ement and ha[ d] e x p erienced
g radual improvement in her sy mptoms.” The AL J then cited additional tr e atment notes and concluded Attmore h ad “shown imp r ovement in the a rea of social functioning

. ” B ased in part o n the medic a l improvement finding

, the AL J awarde d Attmore benefits only for the closed period from April 15, 2007 throug h March 2 3
, 2009. After the Appeals Council de n i ed review, A ttmore filed a civil action seeking review of the AL J ’s decisio n , a n d the d istrict court g ranted
summary judg ment to the Commissioner. W e have jurisdiction over Attmore’s appe a l u n d er 28 U.S.C. § 1291 and now reverse.

II

W e r eview the district court’s decision s ustaining the AL J ’s denial of social security benefit s d e novo and can reverse only

if the AL J ’s finding s are based on leg al error or

are not supported b y substantial evidenc e in the record. See Molina v. Astr u e , 6 74 F .3d 1 104, 1110 (9th Cir. 2012). Substantial evidence is “‘more than a mere scintilla,’ but may be less than a preponderance.” Id. at 1110–11 (quoting Valentine v. Comm ’ r Soc. Sec. Admin.

, 574 F

. 3d 685, 690 (9th Cir. 2009)). I f the evidence is “susceptible to more than

one rational interpretation,” w e are required to affirm. Id. at 1111. We c a n n ot affirm, however, “simply b y isolating a specific quantum of supporting evidence,” but “must consi d e r the recor d as a whole, weig hing both evidence that supports and evidence that detracts from the [ Commissioner’s] conclusion.” Tackett v

. A pfel

, 180 F .3d 1094, 1098 (9th Cir. 1999) (citation omitted).A T T M O R E V

. C O L

V I N 7

III

Attmore raises two challeng es to the AL J ’ s determination that she medically improved as of March 24, 2009. F irst, she contends the AL J erred in making only a g eneral comparison of the medical evidence without reference to a specific point in time. I n her v i e w , the AL J w as r equired to specifically identify the dates being compared, and the AL J ’s failure to do

so was leg al error. Second, Attmore a r g u es that even if the AL J ’s comparison were proper, substantial evidence does not support a findi n g of medical improvement. W e a g ree only with her second contention.

A

W e beg in with Attmore’s arg ument that the AL J failed to make the appropriate comparison i n d etermining she h ad medically improved. Medical improvement i s defined a s “any decrease in the medical severity ” of a r ecipient’s i mpairment, 20 C.F .R. § 404.1594(b)(1), and requires a “comparison of prior and current medical evidence which
must show that there have b een chang es (improvement) in the
sy mptoms, sig ns or laboratory f i nding s associated with that impairment(s),” id. § 404.1594(c)(1). T he Commissioner’s
reg ulations prescribe a specific baseline for this c omparison:

an AL J must “compare t h e

. . . medical severity ” of the impairment(s) “prese n t a t the time of the most recent favorable medical decision” – that is, w hen the claimant was last found d isabled o r c ontinued to be disabled

– “ t o t h e medical severity of that impairment(s)” at the time of the comparison. Id. § 404.1594(b)(7).

Making this compariso n is straig htforward in ordinary termination cases where the A L J finds a claimant is disabledA T T M O R E V

. C O L

V I N 8

( o r c o n tinues to be disabled) in one decision and, in a la t e r decision, finds the claimant has medically improved. I n those
cases, the “most recen t favorable medical decision” is an earlier d e cision, and the severity of the claimant’s impairment
at the time o f that d ecision provides the r elevant baseline for comparison. Attmore’s ca s e , however, is a so-called closed period case, meaning the AL J found – in the same decision

– that she had been disabled for a closed period of time and h ad since medically improved. B ecause the AL J mad e i t s finding s of d isability and medical improvement i n a sing le decision, there was n o “most r ecent favorable medical decision” for comparison. The Commissioner’s reg ulations have no direct application in these circumstances and thus do not neatly prescribe an appropriate baseline.

W e nevertheless ag ree with the part i e s that the thrust o f the Commissioner’s reg ulations a p plies in closed period

cases. Cong ress enacted the medical improvement standard

as a safeg uard ag ainst the arbitrary termination of be n efits. See Pickett v. Bowen
, 833 F .2d 288, 292 (11th Cir. 1 987). A s other circuits have ex plained, Cong ress intended this safeg uard to apply to all claimants, including t h o se w ho receive benefits in closed period cases. See W aters v

. B a rnhart

, 276 F .3d 716, 7 19 (5th Cir. 2002) (holding t h e medical improvement standard a p plies to closed period cases); Shepherd v. Apfel

, 184 F .3d 1196, 120 0 ( 10th Cir. 1999) (same); Pickett

, 833 F

. 2d at 2 91–92 (same); Chrupcala

v. H e ckler

, 829 F .2d 1269, 1 27 4 ( 3d Cir. 1987) (same); see also Jones v

. Shalala

, 10 F .3 d 5 22, 523–24 ( 7th Cir. 1 993) (applying the me d i c a l improvement standard to a closed period case). According ly

, a n AL J should “eng ag e[ ] in the

same decision-making proce s s ” in c losed period cases as in ordinary termination cases. W

aters , 276 F .3d at 719.A T T M O R E V

. C O L

V I N 9

W h at, then, is the appropriate b aseline for comparison in

a closed period case? T he reg u lat i o n s require a comparison

o f “prior and current medical evidence,” 2 0 C.F. R

. § 404.1594(c)(1), and d efine the “most recent favorable medical decision” as “ the latest d e c i sion involving a considerat i o n o f the medical evidence and the issue o f whether [ the c laimant] w[ as] disabled,” id. § 4 04.1594(b)(7). I n other words, the relevant baseline normally is the medical evidence underly ing the AL J ’s most recent d isability determination. F o r closed period case s , t he analog ous baseline is the medical evidence used to determine the claimant was disabled. W e ther e f o re h old that, in closed period cases, the AL J should com p a r e t he medical evidence used to determine the claimant was disabled with the medical evidence ex isting at the time of possible medical improvement. 1

W e are satisfied the AL J m ade the appropriate comparison here. The AL J made ex tensive findin g s t hat

1 T h e p oin t is th at m ed ical i m p r o v e m en t d eterm in atio n s req u ire a

co m pariso n of tw o d istin ct bo d ies o f m ed ical ev id en ce. In clo s ed p erio d cases, th e b o d y o f ev id en ce u sed to d eterm in e th e claim an t w as d isab led

m ay p ertain to o n ly th e d isab ility o n set d ate, see, e.g

. , Sh ep h erd

, 1 8 4 F.3 d
at 1 2 0 2
, o r to th e en tire disab ility p erio d

, see Newb o l d v. Co lvin

, 7 1 8 F.3 d 1 2 5 7
, 1 26 0 (1 0 th Cir. 2 0 1 3 ). In th e f o rm er scen ario , co u rts h av e lo ok ed
t o m ed ical ev id en ce p ertain in g to th e d isab ility o n set d ate as th e ap p ro p riate b aselin e f

o r co m pariso n

. S

ee, e.g

. , S

h e p h e r d

, 1 8 4 F.3 d at 1 2 0 2 (co m

p arin g th e claim an t’ s sy

m p to m s f ro m th e d isab ility

o n set d ate to th o se o n

th e d ate o f

m ed ical im

p ro v em en t). In th e latter s cen ario

, th e T en th Circu it h as lo o k ed t o m ed i cal ev i d en ce p ertai n i n g to t h e en t ire d isab i lity perio d as th e ap pro p riate baselin e f o r c o m p ariso n

. See Newb o ld

, 7 1 8 F.3 d at 1 2 6 4

– 6 5. Eith er w ay , w e u n derstan d th ese cases as ap p ly in g t h e sam e ru le w e ad o p t h ere: an A L J m u st co m p are th e b o d y o f m ed i c a l

ev id en ce as o f th e d ate o f p o ssib le m ed ical im p ro v em en t to t

h at u sed to d eterm in e th e claim an t w as d i sab led

.A T T M O R E V

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V I N 10

Attmore was d isabled from April 15, 2007 throug h March 23, 2009. The AL J then f

o und medical improvement as of March 24, 2009, noting Attmore h ad “benefited from mental health
treatment and medication m anag e ment” and “ex p erienced
g radual improvement in her sy mptoms.” As illustration, the AL J described in detail Attmore’s sy mptoms a s of March 24 and pointed to e vidence indicating she had “s h o w n improv e m ent in the area of social functioning

. ” Attmore faults the AL J ’s analy sis for n o t specifically identify ing the baseline for comparison. Bu t t h e AL J ’s references to “improvement” implied a comparison to Attmore’s condition during the d isability period, which th e A L J had just discussed. W e can therefore draw the “specific a nd leg itimate inference[ ] ” that the AL J compared the medical evidence from the d a t e of possible improvement to the medical evidence used to determine t h a t Attmore was disabled. Magallenes v

. Bowen
, 881 F

. 2d 747, 755 (9th Cir. 1989). There was no leg al error.

B

Attmore nex t arg ues substantial evidence d o e s n o t s u p p o r t the AL J ’s finding of medical improvement. W e ag ree.

Some evidence does suppor t t h e A L J ’s conclusion that Attmore had shown improvement in her sy mptoms and social functioning

. Dr. W olf’s report from March 23, 2 0 09 – which the AL J discussed in detail – a ssessed Attmore as “ g enerally doing well at this time” and noted sh e h a d “no specific complaints.” Dr. W olf a lso reported Attmore’s hy g iene was app r o p r iate, her thoug ht p rocesses were org aniz ed a nd spontaneous and there was n o e v idence of active p sy chosis. Other treatment notes likewise demonstrate that – as the AL J observed – Attmore discussed the possibilities of vocationalA T T M O R E V

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V I N 11

rehabilitation and r eturning to school and was improving her

s o c i al relationships. Taken in isolation, the evidence o n which the AL J relied sug g e sts some medical improvement.

The AL J was required, however, to ex amine this evidence in the broader contex t of A ttmore’s impairment. See Holohan

v. Massanari
, 246 F .3d 1195, 1205 (9th Cir. 2001) ( “ That a person who suffers from severe panic a ttacks, a nx iety

, a nd depression makes some improvement does n o t mean that the person’s impairments n o long er seriously affect h er

. . . .”). An AL J cannot simply “pick out a few isolated i n s t ances o f i m p rovement over a period of months or y e ars” but mu s t interpret “reports of ‘improvement’

. . . with an understanding of the patient’s overall well-being and the nature o f her
sy mptoms.” Garrison v. Colvin

, 759 F .3d 995, 1017 (9th Cir. 20 1 4); see a lso Scott v. A strue , 647 F .3d 734, 740 (7th Cir. 2011) (“[ A ] lthoug h Scott had improve d with treatment, she nevertheless continued to frequently ex perience bouts o f
cry ing and feeling s of paranoia. The AL J was not permitted to ‘cherry pick’ from those mix ed results to support a denial of benefits.”). I

n short, the ex amples an AL J chooses “must in fact c onsti t u t e ex amples of a broader development.” Garrison
, 759 F .3d at 1018.

W e conclude the ex amples on which the AL J relied here

were not in fact indicative of a “broader development” in two respects. F irst, the improvement the AL J h ig h lig hted was only temporary

. I t is the nat u r e of bipolar disorder that
sy mptoms w ax a nd w ane over time. W ith respect to such impairments, “[ i] mprovement

. . . that is only temporary will
not warrant a finding o f medical improvement.” 20 C.F .R. § 4 0 4

. 1 594(c)(3)(iv). Althoug h the AL J pointed to isolated sig ns of i mprovement, the AL J could not find medical i m provement o n that basis unless the ups and the down s o fA T T M O R E V

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V I N 12

Attmore’s development showed sustained improvement. See id. § 404.1594(b)(1) (Ex ample 2).

Attmore’s improvement w as not sustained. On March 30, 2009 – just o ne week after Dr. Wolf r eported Attmore w a s “g enerally doing well” – another therapist reported that Attmore was “losing functioning ability ” and said she “ha[ d] been stay ing in her a

p artment f

or [ d] ay s at a time, not leaving and n ot g etting dressed.” Althoug h Attmore sho w ed some sig ns of p ro gr e ss in the following months, she said she was “feeling increasing ly depre s s e d ” in late April, and Dr. W o lf noted she had “ sig nificant depressive and anx ious themes” in her speech. I n J u ly

, she “could not sleep for about 3 day s” after a flare-up o f her sy mptoms. A t t m ore then strug g led with depression f

or t h r e e months. As her depression worsened in A ug ust to October, s h e b etray ed “anx ious a nd depressive themes w ith some mild suicidal ideation” a nd suffered “daily

intrusive suicidal thoug hts.”

Attmo re continued to ex h ibit only temporary improvement in 2010. F or e x ample, in Ma r c h – at the time when she was discussing vocational r ehabilitation and school

– her sy mptoms ag ain worsened. One week b ef o r e t he start of school, Attmore was “g e tting depressed,” sleeping 12–13 hours per nig ht and g rowing anx ious. The day before school beg an, Attmore r eported ex periencing “increased depression and h ea r i n g v oices on one occasion,” and sleeping for 19 straig ht hours. Attmore did feel “a bit better” after deciding
not to g o to school, but o ver the nex t month she had two more flare-ups, including one causing a week of poor sleep. Given the frequency and persistent severity of these episodes, the evidence compels the conclusion that there was no “broader developme nt” of sustained improvement underly ing the AL J ’s ex amples. G arrison , 759 F .3d at 1018.A T T M O R E V

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V I N 13

Second, althoug h the AL J observed some “improvement in the area of social functioning ,” that improvement was quite limited. Even during the disability period, At tmore h ad discussed g oing back to scho o l

. That she did so d uring the medical improvement period thus was not itself a sig n o f improvement – especially because in neither period d i d she follow throug h with her plans. Attmore also visited her father during the asserted medical improvemen t p eriod, but that visit caused her depression to return a long with a weeklong flareup of her sy

mptoms. She later stopped communicatingwith him entirely

. F inally

, des p ite improvement in other aspects of s o c i al functioning

, A ttmore’s paranoia p ersisted, making h e r u n a b le to use public transportation. 2 Throug hout the medical improvement peri o d

, Attmore continued to rely on others in order to leave her house, including to run e rrands o r attend doctor’s a

ppointments. I f s h e h a d t o take the bus somewhere, she would ask a friend to g o with h er. Althoug h she did take the bus alone one time, that experience resulted in y e t another weeklong flare-up of sy mpto ms after she felt harassed at the bus stop. This aspect o f Attmore’s social functioning

, in short, did not “ in fact constitute ex amples o f

a broader d e velopment.” Garrison
, 759 F .3d at 1018 (concluding there was n o sustained medical improvement where “ some sy

mptoms came and went

. . . , some sy mptoms

2 “[ T ] a k i n g p u

b lic tran sp o rtatio n ” is o n e o f t h e “ [a]ctiv ities o f d aily liv in g ” th e Co m

m issio n er co n sid e rs in d eterm in in g th e sev erity of a claim an t’ s im

p airm en t

. 2 0 C.F.R. p t

. 4 0 4
, su b pt. P
, ap p. 1
, § 1 2 .0 0 (C)(1 ). It also relates to a claim an t’ s so cial f u n ctio n in g

. S

ee id

. § 1 2 .0 0 (C ) ( 2 ) (“ So cial f u n ctio n in g in clu d es th e ab ility to g et alo n g w ith o th ers, su ch as f am ily m em

bers, f rien d s , . . . or b u s d riv ers.”). A ttm o re’ s d istru st of
stran g er s cau sed h er to h av e p an ic attack s w h en sh e u sed p u

b l ic
tran sp o rtatio n

. T h e A L J th u s p ro p erly co n sid ered th is f acto r as p art o f h er

so cial f u n ctio n i n g in d eterm in i n g th e s ev erity of h er im p airm en t d u rin g th e d isab i lity p erio d

.A T T M O R E V

. C O L

V I N 14

persisted n early the w h o l e period

. . . , and still other
sy mptom s appear to have remained a constant source o f impairment”).

W e conclude the AL J erroneously f o c u s ed o n only temporary periods and isolated aspects of Attmore’s improvement that were not representative of the con t inuing severity of her sy mptoms. B ecause Attmore’s improvement

was not sustained and was considerably limited in scope, we hold substantial evidence does not support the AL J ’s finding of medical improvement.

CONCLUSION

The AL J properly compa r e d t he medical evidence, but erred in d etermining that A ttmore had medically improved a s of March 24, 2009. We therefore rev er s e t h e judg ment a nd remand with instructions to the d istrict court to remand to the AL J for the calculation and award of benefits.

REVERSED AND REMANDED.