FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EMILY ATTMORE,

Plaintiff-Appellant,

v.

CAROLYN W. COLVIN, Acting

Commissioner of Social Security,

Defendant-Appellee.

No. 13-36048

D.C. No.

3:12-cv-00704-HU

OPINION

Appeal from the United States District Court

for the District of Oregon

Michael H. Simon, District Judge, Presiding

Argued and Submitted November 3, 2015

Portland, Oregon

Filed June 30, 2016

Before: Raymond C. Fisher, Marsha S. Berzon

and Paul J. Watford, Circuit Judges.

Opinion by Judge Fisher
2 ATTMORE V. COLVIN

SUMMARY*

Social Security

The panel reversed the district court’s summary judgment

in a Social Security case in which an administrative law judge

found in a single decision that a disability benefits claimant

was disabled for a closed period but had since medically

improved.

The panel held that in a closed period case, the ALJ

should compare the medical evidence used to determine that

the claimant was disabled with the medical evidence existing

at the time of asserted medical improvement. The panel held

that the ALJ in this case made the appropriate comparison,

but substantial evidence did not support the ALJ’s finding of

medical improvement. The panel remanded the case to the

district court with instructions to remand it to the ALJ to

calculate an award of benefits.

COUNSEL

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

Jeffrey Staples (argued) and Nancy A. Mishalanie, Assistant

Regional Counsel; David Morado, Regional Chief Counsel;

Social Security Administration, Office of the General

Counsel, Seattle, Washington; for Defendant-Appellee.

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

been prepared by court staff for the convenience of the reader.
ATTMORE V. COLVIN 3

OPINION

FISHER, Circuit Judge:

A Social Security disability benefits claimant is no longer

entitled to benefits when substantial evidence demonstrates

(1) “there has been any medical improvement in the

[claimant’s] impairment” and (2) the claimant “is now able to

engage in substantial gainful activity.” 42 U.S.C. § 423(f)(1). 

To determine whether there has been medical improvement,

an administrative law judge (ALJ) must “compare the current

medical severity” of the claimant’s impairment to the medical

severity of the impairment “at the time of the most recent

favorable medical decision that [the claimant] w[as] disabled

or continued to be disabled.” 20 C.F.R. § 404.1594(b)(7). 

This appeal addresses the question of how an ALJ should

determine whether medical improvement has occurred in socalled “closed period” cases – i.e., where the ALJ finds in a

single decision that the claimant was disabled for a closed

period of time but has since medically improved.

We conclude that in closed period cases an ALJ should

compare the medical evidence used to determine that the

claimant was disabled with the medical evidence existing at

the time of asserted medical improvement. Although the ALJ

in this case made the appropriate comparison, substantial

evidence does not support the ALJ’s finding of medical

improvement. We therefore reverse the judgment and

remand with instructions to remand this case to the ALJ to

calculate an award of benefits.
4 ATTMORE V. COLVIN

I

This appeal concerns an ALJ’s award of social security

disability benefits to Emily Attmore, who applied for

disability benefits in October 2008. After the agency denied

Attmore’s claim for benefits, an ALJ held a hearing in July

2010 and determined that, due to her bipolar disorder,

Attmore was disabled as of April 15, 2007, but had medically

improved to the point she was no longer disabled beginning

on March 24, 2009. In making these findings, the ALJ

considered the following medical evidence.

Attmore was last gainfully employed on April 13, 2007,

when she quit her job after a series of breakdowns that

prevented her from getting out of bed. In 2008, she was

hospitalized three times because of her bipolar disorder. In

May, she was hospitalized for two weeks after a suicide

attempt during which she reported hearing voices and

hallucinating. Although she “initially did well” after her

release, she began to hallucinate and became restless after she

reduced her medications or stopped taking them altogether. 

In August, she was hospitalized again for one week after

experiencing hallucinations and “extreme paranoia.” In

October, she experienced “situational problems related to [a]

significant other,” again went off her medications and

stopped sleeping, and was hospitalized a third time after she

was found wandering around and responding to voices in her

head. Upon her release one month later, Attmore began

seeing psychiatrist Dr. Robert M. Wolf, as well as one of her

former therapists.

Dr. Wolf’s treatment notes report mixed progress over the

next year. On November 10, 2008, for example, Attmore was

“struggling” and “expressing some paranoid ideas,” but two
ATTMORE V. COLVIN 5

weeks later said she was “doing well,” and Dr. Wolf reported

her mental state was “fairly stable.” Similarly, on February

13, 2009, though Attmore seemed “quite stable,” she reported

she had been “pretty depressed” for several weeks, exhibiting

“social isolation, sleeping a lot.” By March 5, she said she

was still “somewhat socially isolative,” but otherwise

“feeling much better,” and Dr. Wolf noted she was “actually

doing well.” On March 23 – the final day the ALJ found

Attmore was disabled – she again said she was “feeling pretty

well” with “no specific complaints,” but one week later she

told another therapist she had been “staying in her apartment

for [d]ays at a time, not leaving and not getting dressed.” She

experienced a gradual worsening of her symptoms from

August through October as she increasingly struggled with

depression.

Attmore’s progress in 2010 likewise was mixed. In

February, she began working with a clinical social worker

who agreed to drive her to appointments because she

“d[id]n’t feel comfortable riding public transportation.” On

February 26, Attmore told her new doctor she was “doing

well” and spoke of starting school, but continued to complain

of heightened anxiety when there were “other stresses in her

life.” Although she “endorse[d] satisfaction with her life” in

early March, by late March she said she was getting

depressed, and had another episode during which she heard

voices and slept for 19 hours. In April, her symptoms flared

up two more times, causing increased depression and poor

sleep for one week.

Based on this medical evidence, the ALJ determined

Attmore was disabled between April 15, 2007 and March 23,

2009. At issue here is the ALJ’s medical improvement

finding, which rested on two conclusions. The ALJ first
6 ATTMORE V. COLVIN

detailed Dr. Wolf’s treatment notes from March 23, 2009 and

concluded Attmore had “benefited from mental health

treatment and medication management and ha[d] experienced

gradual improvement in her symptoms.” The ALJ then cited

additional treatment notes and concluded Attmore had

“shown improvement in the area of social functioning.” 

Based in part on the medical improvement finding, the ALJ

awarded Attmore benefits only for the closed period from

April 15, 2007 through March 23, 2009. After the Appeals

Council denied review, Attmore filed a civil action seeking

review of the ALJ’s decision, and the district court granted

summary judgment to the Commissioner. We have

jurisdiction over Attmore’s appeal under 28 U.S.C. § 1291

and now reverse.

II

We review the district court’s decision sustaining the

ALJ’s denial of social security benefits de novo and can

reverse only if the ALJ’s findings are based on legal error or

are not supported by substantial evidence in the record. See

Molina v. Astrue, 674 F.3d 1104, 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)). If the evidence is “susceptible to more than

one rational interpretation,” we are required to affirm. Id. at

1111. We cannot affirm, however, “simply by isolating a

specific quantum of supporting evidence,” but “must consider

the record as a whole, weighing both evidence that supports

and evidence that detracts from the [Commissioner’s]

conclusion.” Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir.

1999) (citation omitted).
ATTMORE V. COLVIN 7

III

Attmore raises two challenges to the ALJ’s determination

that she medically improved as of March 24, 2009. First, she

contends the ALJ erred in making only a general comparison

of the medical evidence without reference to a specific point

in time. In her view, the ALJ was required to specifically

identify the dates being compared, and the ALJ’s failure to do

so was legal error. Second, Attmore argues that even if the

ALJ’s comparison were proper, substantial evidence does not

support a finding of medical improvement. We agree only

with her second contention.

A

We begin with Attmore’s argument that the ALJ failed to

make the appropriate comparison in determining she had

medically improved. Medical improvement is defined as

“any decrease in the medical severity” of a recipient’s

impairment, 20 C.F.R. § 404.1594(b)(1), and requires a

“comparison of prior and current medical evidence which

must show that there have been changes (improvement) in the

symptoms, signs or laboratory findings associated with that

impairment(s),” id. § 404.1594(c)(1). The Commissioner’s

regulations prescribe a specific baseline for this comparison:

an ALJ must “compare the . . . medical severity” of the

impairment(s) “present at the time of the most recent

favorable medical decision” – that is, when the claimant was

last found disabled or continued to be disabled – “to the

medical severity of that impairment(s)” at the time of the

comparison. Id. § 404.1594(b)(7).

Making this comparison is straightforward in ordinary

termination cases where the ALJ finds a claimant is disabled
8 ATTMORE V. COLVIN

(or continues to be disabled) in one decision and, in a later

decision, finds the claimant has medically improved. In those

cases, the “most recent favorable medical decision” is an

earlier decision, and the severityof the claimant’s impairment

at the time of that decision provides the relevant baseline for

comparison. Attmore’s case, however, is a so-called closed

period case, meaning the ALJ found – in the same decision –

that she had been disabled for a closed period of time and had

since medically improved. Because the ALJ made its

findings of disability and medical improvement in a single

decision, there was no “most recent favorable medical

decision” for comparison. The Commissioner’s regulations

have no direct application in these circumstances and thus do

not neatly prescribe an appropriate baseline.

We nevertheless agree with the parties that the thrust of

the Commissioner’s regulations applies in closed period

cases. Congress enacted the medical improvement standard

as a safeguard against the arbitrary termination of benefits. 

See Pickett v. Bowen, 833 F.2d 288, 292 (11th Cir. 1987). As

other circuits have explained, Congress intended this

safeguard to apply to all claimants, including those who

receive benefits in closed period cases. See Waters v.

Barnhart, 276 F.3d 716, 719 (5th Cir. 2002) (holding the

medical improvement standard applies to closed period

cases); Shepherd v. Apfel, 184 F.3d 1196, 1200 (10th Cir.

1999) (same); Pickett, 833 F.2d at 291–92 (same); Chrupcala

v. Heckler, 829 F.2d 1269, 1274 (3d Cir. 1987) (same); see

also Jones v. Shalala, 10 F.3d 522, 523–24 (7th Cir. 1993)

(applying the medical improvement standard to a closed

period case). Accordingly, an ALJ should “engage[] in the

same decision-making process” in closed period cases as in

ordinary termination cases. Waters, 276 F.3d at 719.
ATTMORE V. COLVIN 9

What, then, is the appropriate baseline for comparison in

a closed period case? The regulations require a comparison

of “prior and current medical evidence,” 20 C.F.R.

§ 404.1594(c)(1), and define the “most recent favorable

medical decision” as “the latest decision involving a

consideration of the medical evidence and the issue of

whether [the claimant] w[as] disabled,” id. § 404.1594(b)(7). 

In other words, the relevant baseline normally is the medical

evidence underlying the ALJ’s most recent disability

determination. For closed period cases, the analogous

baseline is the medical evidence used to determine the

claimant was disabled. We therefore hold that, in closed

period cases, the ALJ should compare the medical evidence

used to determine the claimant was disabled with the medical

evidence existing at the time of possible medical

improvement.1

We are satisfied the ALJ made the appropriate

comparison here. The ALJ made extensive findings that

1 The point is that medical improvement determinations require a

comparison of two distinct bodies of medical evidence. In closed period

cases, the body of evidence used to determine the claimant was disabled

may pertain to only the disability onset date, see, e.g., Shepherd, 184 F.3d

at 1202, or to the entire disability period, see Newbold v. Colvin, 718 F.3d

1257, 1260 (10th Cir. 2013). In the former scenario, courts have looked

to medical evidence pertaining to the disability onset date as the

appropriate baseline for comparison. See, e.g., Shepherd, 184 F.3d at

1202 (comparing the claimant’s symptoms from the disability onset date

to those on the date of medical improvement). In the latter scenario, the

Tenth Circuit has looked to medical evidence pertaining to the entire

disabilityperiod as the appropriate baseline for comparison. See Newbold,

718 F.3d at 1264–65. Either way, we understand these cases as applying

the same rule we adopt here: an ALJ must compare the body of medical

evidence as of the date of possible medical improvement to that used to

determine the claimant was disabled.
10 ATTMORE V. COLVIN

Attmore was disabled from April 15, 2007 through March 23,

2009. The ALJthen found medical improvement as of March

24, 2009, noting Attmore had “benefited from mental health

treatment and medication management” and “experienced

gradual improvement in her symptoms.” As illustration, the

ALJ described in detail Attmore’s symptoms as of March 24

and pointed to evidence indicating she had “shown

improvement in the area of social functioning.” Attmore

faults the ALJ’s analysis for not specifically identifying the

baseline for comparison. But the ALJ’s references to

“improvement” implied a comparison to Attmore’s condition

during the disability period, which the ALJ had just

discussed. We can therefore draw the “specific and

legitimate inference[]” that the ALJ compared the medical

evidence from the date of possible improvement to the

medical evidence used to determine that Attmore was

disabled. Magallenes v. Bowen, 881 F.2d 747, 755 (9th Cir.

1989). There was no legal error.

B

Attmore next argues substantial evidence does notsupport

the ALJ’s finding of medical improvement. We agree.

Some evidence does support the ALJ’s conclusion that

Attmore had shown improvement in her symptoms and social

functioning. Dr. Wolf’s report from March 23, 2009 – which

the ALJ discussed in detail – assessed Attmore as “generally

doing well at this time” and noted she had “no specific

complaints.” Dr. Wolf also reported Attmore’s hygiene was

appropriate, her thought processes were organized and

spontaneous and there was no evidence of active psychosis. 

Other treatment notes likewise demonstrate that – as the ALJ

observed – Attmore discussed the possibilities of vocational
ATTMORE V. COLVIN 11

rehabilitation and returning to school and was improving her

social relationships. Taken in isolation, the evidence on

which the ALJ relied suggests some medical improvement.

The ALJ was required, however, to examine this evidence

in the broader context of Attmore’s impairment. See Holohan

v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001) (“That a

person who suffers from severe panic attacks, anxiety, and

depression makes some improvement does not mean that the

person’s impairments no longer seriously affect her . . . .”). 

An ALJ cannot simply “pick out a few isolated instances of

improvement over a period of months or years” but must

interpret “reports of ‘improvement’ . . . with an understanding

of the patient’s overall well-being and the nature of her

symptoms.” Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir.

2014); see also Scott v. Astrue, 647 F.3d 734, 740 (7th Cir.

2011) (“[A]lthough Scott had improved with treatment, she

nevertheless continued to frequently experience bouts of

crying and feelings of paranoia. The ALJ was not permitted

to ‘cherry pick’ from those mixed results to support a denial

of benefits.”). In short, the examples an ALJ chooses “must

in fact constitute examples of a broader development.” 

Garrison, 759 F.3d at 1018.

We conclude the examples on which the ALJ relied here

were not in fact indicative of a “broader development” in two

respects. First, the improvement the ALJ highlighted was

only temporary. It is the nature of bipolar disorder that

symptoms wax and wane over time. With respect to such

impairments, “[i]mprovement . . . that is only temporary will

not warrant a finding of medical improvement.” 20 C.F.R.

§ 404.1594(c)(3)(iv). Although the ALJ pointed to isolated

signs of improvement, the ALJ could not find medical

improvement on that basis unless the ups and the downs of
12 ATTMORE V. COLVIN

Attmore’s development showed sustained improvement. See

id. § 404.1594(b)(1) (Example 2).

Attmore’s improvement was not sustained. On March 30,

2009 – just one week after Dr. Wolf reported Attmore was

“generally doing well” – another therapist reported that

Attmore was “losing functioning ability” and said she “ha[d]

been staying in her apartment for [d]ays at a time, not leaving

and not getting dressed.” Although Attmore showed some

signs of progress in the following months, she said she was

“feeling increasingly depressed” in late April, and Dr. Wolf

noted she had “significant depressive and anxious themes” in

her speech. In July, she “could not sleep for about 3 days”

after a flare-up of her symptoms. Attmore then struggled

with depression for three months. As her depression

worsened in August to October, she betrayed “anxious and

depressive themes with some mild suicidal ideation” and

suffered “daily intrusive suicidal thoughts.”

Attmore continued to exhibit only temporary

improvement in 2010. For example, in March – at the time

when she was discussing vocational rehabilitation and school

– her symptoms again worsened. One week before the start

of school, Attmore was “getting depressed,” sleeping 12–13

hours per night and growing anxious. The day before school

began, Attmore reported experiencing “increased depression

and hearing voices on one occasion,” and sleeping for 19

straight hours. Attmore did feel “a bit better” after deciding

not to go to school, but over the next 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

development” of sustained improvement underlying the

ALJ’s examples. Garrison, 759 F.3d at 1018.
ATTMORE V. COLVIN 13

Second, although the ALJ observed some “improvement

in the area of social functioning,” that improvement was quite

limited. Even during the disability period, Attmore had

discussed going back to school. That she did so during the

medical improvement period thus was not itself a sign of

improvement – especially because in neither period did she

follow through with her plans. Attmore also visited her father

during the asserted medical improvement period, but that visit

caused her depression to return along with a weeklong flareup of her symptoms. She later stopped communicating with

him entirely. Finally, despite improvement in other aspects

of social functioning, Attmore’s paranoia persisted, making

her unable to use public transportation.2 Throughout the

medical improvement period, Attmore continued to rely on

others in order to leave her house, including to run errands or

attend doctor’s appointments. If she had to take the bus

somewhere, she would ask a friend to go with her. Although

she did take the bus alone one time, that experience resulted

in yet another weeklong flare-up of symptoms after she felt

harassed at the bus stop. This aspect of Attmore’s social

functioning, in short, did not “in fact constitute examples of

a broader development.” Garrison, 759 F.3d at 1018

(concluding there was no sustained medical improvement

where “some symptoms came and went . . . , some symptoms

2

“[T]aking public transportation” is one of the “[a]ctivities of daily

living” the Commissioner considers in determining the severity of a

claimant’s impairment. 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00(C)(1). 

It also relates to a claimant’s social functioning. See id. § 12.00(C)(2)

(“Social functioning includes the ability to get along with others, such as

family members, friends, . . . or bus drivers.”). Attmore’s distrust of

strangers caused her to have panic attacks when she used public

transportation. The ALJthus properly considered this factor as part of her

social functioning in determining the severity of her impairment during the

disability period.
14 ATTMORE V. COLVIN

persisted nearly the whole period . . . , and still other

symptoms appear to have remained a constant source of

impairment”).

We conclude the ALJ erroneously focused on only

temporary periods and isolated aspects of Attmore’s

improvement that were not representative of the continuing

severity of her symptoms. Because Attmore’s improvement

was not sustained and was considerably limited in scope, we

hold substantial evidence does not support the ALJ’s finding

of medical improvement.

CONCLUSION

The ALJ properly compared the medical evidence, but

erred in determining that Attmore had medically improved as

of March 24, 2009. We therefore reverse the judgment and

remand with instructions to the district court to remand to the

ALJ for the calculation and award of benefits.

REVERSED AND REMANDED.