Jasim Ghanim v. Carolyn W. Colvin

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JASIM ABO GHANIM, No. 12-35804
Plaintiff-Appellant,
D.C. No.
v. 2:11-cv-01954-
BAT
CAROLYN W. COLVIN,
Commissioner of the Social Security
Administration, OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of Washington
Brian Tsuchida, Magistrate Judge, Presiding

Argued and Submitted
November 7, 2013—Seattle, Washington

Filed August 18, 2014

Before: Alex Kozinski, Chief Judge, and Richard A. Paez
and Marsha S. Berzon, Circuit Judges.

Opinion by Judge Paez;
Dissent by Chief Judge Kozinski
2 GHANIM V. COLVIN

SUMMARY*

Social Security

The panel reversed the district court’s judgment affirming
the Social Security Commissioner’s denial of an application
for Disability Insurance Benefits and Supplemental Security
Income.

The panel held that the weight the administrative law
judge (“ALJ”) accorded to the claimant’s treating providers
and the ALJ’s adverse credibility determination were not
supported by substantial evidence. The panel further held
that these ALJ errors infected the ALJ’s residual functional
capacity assessment and his determination that the claimant
was able to perform past relevant work. The panel remanded
with instructions to the district court to remand the case to the
Commissioner for further proceedings.

Chief Judge Kozinski dissented because he would find
that there was sufficient evidence in the record to uphold the
Commissioner’s decision.

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 GHANIM V. COLVIN 3

COUNSEL

Charles W. Talbot (argued), Talbot & Associates, PS,
Tacoma, Washington, for Plaintiff-Appellant.

Jenny A. Durkan, United States Attorney, Kerry Jane Keefe,
Assistant United States Attorney, Lars J. Nelson (argued),
Assistant Regional Counsel, David Morado, Regional Chief
Counsel, Region X, and Gerald J. Hill, Assistant Regional
Counsel, Social Security Administration, Seattle,
Washington, for Defendant-Appellee.

OPINION

PAEZ, Circuit Judge:

Jasim Abo Abi Shalash Abo Ghanim appeals from the
district court’s judgment affirming the Social Security
Commissioner’s denial of his application for Disability
Insurance Benefits and Supplemental Security Income. In
denying Ghanim’s application for benefits, the
Administrative Law Judge (“ALJ”) rejected the opinions of
Ghanim’s treating physician and other treating providers as
to the severity of his impairments. The ALJ also found
Ghanim’s testimony about the severity of his symptoms not
credible. On reconsideration, the Social Security
Administration (“SSA”) concluded that Ghanim was disabled
after all, but determined that the onset date for his disability
was March 28, 2012, rather than April 5, 2009, as Ghanim
originally alleged. At issue here is only whether Ghanim is
entitled to benefits for the intervening period. We hold that
the weight the ALJ accorded to Ghanim’s treating providers
and the ALJ’s adverse credibility determination are not
4 GHANIM V. COLVIN

supported by substantial evidence. We therefore reverse and
remand for further proceedings.

I. BACKGROUND

A. Ghanim’s personal and medical history

Ghanim immigrated to the United States in 1994 as a
refugee from Iraq, where he had been imprisoned and tortured
for two years. He worked consistently from 1994 to 2009 in
a variety of jobs. In 2009, Ghanim’s brother, who lived in
Iraq and worked with the United States military, was killed.
Ghanim was deeply affected by his brother’s death; he had
nightmares and trouble sleeping, became very forgetful, and
frequently felt unsafe and hopeless. After his brother’s death,
Ghanim stopped working.

1. Treating providers

In July 2009, Ghanim began receiving counseling and
psychiatric care, first at Highpoint Medical Clinic and then at
Harborview Medical Center. At Harborview Medical Center,
Ghanim met with several different medical professionals,
including Christine Elizabeth Youdelis-Flores, M.D., Nina
Spellman Geiger, ARNP, Lawrence McCann, LICSW, and
John Blatchford, LICSW. All of these individuals met with
Ghanim several times over the course of his treatment. Their
treatment notes reflect both ongoing psychological
impairment—including depression, difficulty sleeping,
nightmares, nervousness, memory loss, and anger—and some
signs of improvement—such as higher energy, higher activity
levels, and brighter mood. The treatment notes also show that
Ghanim was diagnosed with major depressive disorder and
post-traumatic stress disorder (“PTSD”), for which he was
 GHANIM V. COLVIN 5

prescribed numerous anti-depressant and anti-anxiety
medications.

In March 2010, Geiger and McCann submitted a
Psychological Evaluation to the Washington State
Department of Social & Health Services. The evaluation
contained diagnoses of major depressive disorder and PTSD.
The evaluation also noted marked cognitive and social
impairment related to Ghanim’s inability to manage social
situations.1 In October 2010, Dr. Youdelis-Flores and
Blatchford sent a letter to Ghanim’s attorney, expressing their
opinion that “[d]ue to his mental illness, we feel it is highly
unlikely [Ghanim] would be able to engage in meaningful
adult activities or employment in the near future.” In support
of this opinion, they referred to his symptoms, including
nightmares, intermittent sleep, low energy, and depressed
mood, and the diagnoses of PTSD and major depression,
recurrent, with psychotic features.

2. Examining physicians

In June 2009, Ghanim was examined by Victoria
McDuffee, Ph.D., a psychologist. Ghanim reported
“increasing agitation, hypervigilance, nightmares, [and] daily
intrusive thoughts.” Dr. McDuffee observed that Ghanim
presented as “emotional[ly] labile, angry, hostile, and
resentful” and that he appeared “paranoid, suspicious of
others,” and “extremely ‘edgy.’” Dr. McDuffee administered
a mental status examination, with the following results:
(1) mini-mental status score: 30 (no cognitive impairments),

1
Gieger and McCann believed that Ghanim’s cognitive functioning
became impaired in stressful social situations. They did not diagnose him
with any cognitive disorders.
6 GHANIM V. COLVIN

(2) Beck depression score: 49 (severe depression), (3) Beck
anxiety score: 44 (severe anxiety).2 She identified a number
of severe functional limitations, including inability to: relate
appropriately to coworkers and supervisors; interact
appropriately in public; respond appropriately to, and tolerate,
the pressures and expectations of a normal work setting; and
maintain appropriate behavior. She diagnosed Ghanim with
PTSD, personality disorder, major depressive disorder, and
generalized anxiety disorder.

In December 2009, at the request of Washington’s
Department of Disability Services, Ghanim met with Wayne
C. Dees, Psy.D. Dr. Dees also administered a mental status
exam. He noted that Ghanim was “generally alert and
friendly throughout the evaluation, but mildly irritable at
times.” He also noted, however, that Ghanim’s “presentation
was consistent with anxious mood, and his affect was
blunted.” He concluded that Ghanim “endorses symptoms of
PTSD, including exaggerated startle, hypervigilence, fear and
avoidance, intrusive thoughts, emotional numbing, and
nightmares.” Ghanim fared poorly on the cognitive portion
of the test, and Dr. Dees concluded that he has a “severely
impaired ability to learn” and “[o]verall cognitive functioning
appears to be impaired.” He indicated that Ghanim was able
to complete “simple but not complex instructions.” However,
Dr. Dees thought that Ghanim’s “cognitive deficits may not
be as severe as he claims,” and stated that “malingering is
suspected based on [Ghanim’s] performance during the
evaluation.” He did not make a definitive diagnosis of
malingering, however, explaining that further evaluation was

2
Dr. McDuffee checked moderate to severe next to Ghanim’s anxiety
score. However, according to the scale on the evaluation form, a score of
44 is within the severe range.
 GHANIM V. COLVIN 7

recommended before a determination could be made. He
diagnosed Ghanim with depressive disorder NOS, PTSD,
anxiety disorder NOS, and cognitive disorder NOS.3

3. Reviewing physicians

In December 2009, the state agency’s medical consultant,
Gerald L. Peterson, Ph.D., performed a mental residual
functional capacity assessment. He determined that
Ghanim’s only limitation was a moderate limitation in his
ability to complete a normal workday without interruption
from psychologically-based symptoms. Dr. Peterson
explained that Ghanim could perform “simple and complex
tasks,” was described as friendly and cooperative, socialized
with friends and attended religious services, and was able to
move and find stable employment. In February 2010, another
state medical consultant, Beth Fitterer, Ph.D., reviewed Dr.
Peterson’s mental residual functional capacity assessment.
She noted that updated medical records did not alter the
previous opinion and affirmed Dr. Peterson’s assessment.
Neither Dr. Peterson nor Dr. Fitterer ever met with Ghanim,
and it is not clear what medical records they reviewed at the
time of their respective assessments.

B. Procedural history

On October 15, 2009, Ghanim applied for Disability
Insurance Benefits and Supplemental Security Income,
claiming he had been disabled since April 5, 2009. His
application was denied. He filed a request for

3
NOS stands for “Not Otherwise Specified.” American Psychiatric
Association, Diagnostic and Statistical Manual of Mental Disorders 381
(4th ed. TR 2000) (“DSM-IV-TR”).
8 GHANIM V. COLVIN

reconsideration, which was also denied. He then requested a
hearing before an ALJ, which was held in December 2010.

At the hearing, Ghanim testified about the extent of his
impairments. He reported that even with medication, he
suffered from “constant[]” nightmares. He also testified
about his social anxiety, stating that “I . . . confine myself to
my home, just sitting there because I don’t want to go outside
and interact with people.” Finally, he explained how his
depression caused him to “neglect” himself. He would allow
dirty clothes to pile up. He was afraid to cook because his
memory was poor and he would forget things in the oven. He
testified that he depended heavily on his friend and caretaker,
Majid Al-Haider, for assistance with his basic self-care and
for much of his limited social interactions. Al-Haider would
visit him daily, help him with chores, take him outside, and
occasionally take him to spend time with his family.

The only other witness to testify at the hearing was Iris
Brookshire, a vocational expert. The ALJ sought her opinion
on whether a person with Ghanim’s limitations could perform
any gainful work in the national economy. To that end, the
ALJ posed a hypothetical question describing an individual
who had limited English proficiency but who could
understand, remember, and carry out basic tasks, had an
average ability to perform sustained work activities, could
respond appropriately to supervision and coworkers, and
could deal with changes within a stable work environment.
The vocational expert opined that such a person would be
able to perform work as a kitchen helper and a commercial
cleaner. However, if the individual had difficulty completing
a normal workday and would miss more than two days of
work per month due to his mental health impairments, the
 GHANIM V. COLVIN 9

vocational expert testified, the individual would not be able
to find work as a kitchen helper or commercial cleaner.

Ghanim also submitted a letter from Al-Haider in support
of his application. Al-Haider described Ghanim’s personal
history and his current difficulties. Most notably, he stated
that Ghanim “can’t do anything without help. He can’t cook
or wash his clothes.”

The ALJ concluded that Ghanim was not disabled within
the meaning of the Social Security Act and denied his
application for benefits. Although the ALJ found that
Ghanim suffered from depression and PTSD, he concluded
that Ghanim’s functioning remained relatively unimpaired.
In doing so, he discounted the opinions of all of Ghanim’s
treating providers, finding that their opinions conflicted with
the treatment notes in the record and were based on Ghanim’s
self-reports, which the ALJ found not credible. The ALJ also
rejected Ghanim’s testimony as not credible, because (1) it
conflicted with the treatment records; (2) it conflicted with
two examining physicians’ evaluations; (3) it conflicted with
prior self-reports; (4) it was belied by the types of daily
activities Ghanim engaged in; and (5) other record evidence
cast doubt on Ghanim’s credibility. Finally, the ALJ rejected
Al-Haider’s characterization of Ghanim’s capabilities
because it conflicted with Ghanim’s own statements. Based
on his assessment of the medical and lay evidence, the ALJ
determined that Ghanim could follow basic instructions in
English, could carry out simple tasks, had the ability to work
on a regular basis, and could respond appropriately to
supervision and coworkers. Relying on the vocational
expert’s testimony, the ALJ concluded that Ghanim could
perform his past work as a kitchen helper and a commercial
cleaner.
10 GHANIM V. COLVIN

The Appeals Council denied Ghanim’s request for review.
The district court affirmed, and this appeal followed. While
this appeal was pending, Ghanim filed another request for
reconsideration with the SSA. He submitted updated medical
records, and this time, the SSA concluded that Ghanim was
disabled as of March 29, 2012. In light of this development,
this case is limited to whether Ghanim is entitled to benefits
for the period beginning April 5, 2009 and ending March 28,
2012.4

II. STANDARD OF REVIEW

“We review the district court’s order affirming the ALJ’s
denial of social security benefits de novo, and reverse only if
the ALJ’s decision was not supported by substantial evidence
in the record as a whole or if the ALJ applied the wrong legal
standard.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir.
2012) (citations omitted). “Even when the evidence is
susceptible to more than one rational interpretation, we must
uphold the ALJ’s findings if they are supported by inferences
reasonably drawn from the record.” Id. at 1111. However, in
conducting our review, we “must consider the entire record
as a whole and may not affirm simply by isolating a ‘specific
quantum of supporting evidence.’” Hill v. Astrue, 698 F.3d
1153, 1159 (9th Cir. 2012) (quoting Robbins v. Soc. Sec.
Admin., 466 F.3d 880, 882 (9th Cir. 2006)).

4
Given the result we reach, we need not address whether the SSA’s
reconsideration of its denial of benefits constituted new evidence
warranting remand under 42 U.S.C. § 405(g). See Melkonyan v. Sullivan,
501 U.S. 89, 97–99 (1991); Luna v. Astrue, 623 F.3d 1032, 1034–35 (9th
Cir. 2010).
 GHANIM V. COLVIN 11

III. DISCUSSION

To determine whether a claimant is disabled, an ALJ is
required to employ a five-step sequential analysis,
determining: “(1) whether the claimant is ‘doing substantial
gainful activity’; (2) whether the claimant has a ‘severe
medically determinable physical or mental impairment’ or
combination of impairments that has lasted for more than 12
months; (3) whether the impairment ‘meets or equals’ one of
the listings in the regulations; (4) whether, given the
claimant’s ‘residual functional capacity,’ the claimant can
still do his or her ‘past relevant work’; and (5) whether the
claimant ‘can make an adjustment to other work.’” Molina,
674 F.3d at 1110 (quoting 20 C.F.R. §§ 404.1520(a),
416.920(a)).5 Ghanim argues that the ALJ failed to consider
a relevant mental impairment at step two. He further argues
that, with respect to the mental impairments the ALJ did
consider, his assessment of the medical evidence was not
supported by substantial evidence, his adverse credibility
determination was not supported by substantial evidence, and
his rejection of lay witness evidence was not supported by a
germane reason. He contends that these errors led to an
improper residual functional capacity determination at step
four. We address each argument in turn.

A. Step two analysis

Ghanim’s first argument warrants only a brief discussion.
He argues that the ALJ erred in failing to consider the
diagnosis of major depressive disorder with psychotic

5
“A claimant’s ‘residual functional capacity’ is what a claimant can still
do despite [his] limitations.” Smolen v. Chater, 80 F.3d 1273, 1291 (9th
Cir. 1996) (quoting 20 C.F.R. § 404.1545(a)).
12 GHANIM V. COLVIN

features. Ghanim never raised this argument before the
district court. Accordingly, it is waived, Greger v. Barnhart,
464 F.3d 968, 973 (9th Cir. 2006), and we do not address it
further.

B. Step four analysis

At step two, the ALJ identified two medically
determinable severe impairments: depressive disorder and
PTSD. We turn to the ALJ’s determination of Ghanim’s
residual functional capacity and ability to perform past
relevant work in light of these impairments.

1. Medical evidence

Generally, the opinion of a treating physician must be
given more weight than the opinion of an examining
physician, and the opinion of an examining physician must be
afforded more weight than the opinion of a reviewing
physician. Holohan v. Massanari, 246 F.3d 1195, 1202 (9th
Cir. 2001); 20 C.F.R. § 404.1527(c). “If a treating
physician’s opinion is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and
is not inconsistent with the other substantial evidence in [the]
case record, [it will be given] controlling weight.” Orn v.
Astrue, 495 F.3d 625, 631 (9th Cir. 2007) (internal quotations
omitted) (alterations in original); see also 20 C.F.R.
§ 404.1527(c)(2)). To reject an uncontradicted opinion of a
treating physician, the ALJ must provide “clear and
convincing reasons that are supported by substantial
evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th
Cir. 2005).
 GHANIM V. COLVIN 13

Even if a treating physician’s opinion is contradicted, the
ALJ may not simply disregard it. The ALJ is required to
consider the factors set out in 20 C.F.R. § 404.1527(c)(2)–(6)
in determining how much weight to afford the treating
physician’s medical opinion. Orn, 495 F.3d at 631; 20 C.F.R.
§ 404.1527(c)(2). These factors include the “[l]ength of the
treatment relationship and the frequency of examination” by
the treating physician, the “[n]ature and extent of the
treatment relationship” between the patient and the treating
physician, the “[s]upportability” of the physician’s opinion
with medical evidence, and the consistency of the physician’s
opinion with the record as a whole. 20 C.F.R.
§ 404.1527(c)(2)–(6). “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.” Orn, 495 F.3d at 631. Similarly, an ALJ
may not simply reject a treating physician’s opinions on the
ultimate issue of disability. Holohan, 246 F.3d at 1202–03.
An ALJ may only reject a treating physician’s contradicted
opinions by providing “specific and legitimate reasons that
are supported by substantial evidence.” Ryan v. Comm’r of
Soc. Sec. Admin., 528 F.3d 1194, 1198 (9th Cir. 2008);
accord Holohan, 246 F.3d at 1202–03.

Only physicians and certain other qualified specialists are
considered “[a]cceptable medical sources.” Molina, 674 F.3d
at 1111 (alteration in original); see also 20 C.F.R.
§ 404.1513(a). Nurse practitioners and therapists are
considered “other sources.” 20 C.F.R. § 404.1513(d). While
their opinions must still be evaluated, 20 C.F.R.
§ 404.1527(c), the ALJ may “discount testimony from these
‘other sources’ if the ALJ ‘gives reasons germane to each
witness for doing so.’” Molina, 674 F.3d at 1111 (quoting
14 GHANIM V. COLVIN

Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1224 (9th Cir.
2010)).

Ghanim argues that the ALJ improperly weighed the
medical evidence by, among other things, disregarding the
opinions of his treating physician and other treating
providers. The ALJ rejected Geiger and McCann’s opinions
that Ghanim had impaired cognitive and social functioning
and Dr. Youdelis-Flores and Blatchford’s opinions that
Ghanim’s mental illness made it “highly unlikely” that he
“would be able to engage in meaningful adult activities or
employment in the near future.” He rejected these opinions
because he regarded them as inconsistent with the treatment
notes and Ghanim’s daily activities and because they were
based largely on Ghanim’s self-reports.

A conflict between treatment notes and a treating
provider’s opinions may constitute an adequate reason to
discredit the opinions of a treating physician or another
treating provider. See Molina, 674 F.3d at 1111–12
(recognizing that a conflict with treatment notes is a germane
reason to reject a treating physician’s assistant’s opinion);
Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685,
692–93 (9th Cir. 2009) (holding that a conflict with treatment
notes is a specific and legitimate reason to reject treating
physician’s opinion). Here, however, substantial evidence
does not support the ALJ’s conclusion that the opinions of
Dr. Youdelis-Flores, Blatchford, Geiger, and McCann were
inconsistent with the treatment notes.

The treatment notes consistently reflect that Ghanim
continued to experience severe symptoms, including ongoing
depression and auditory hallucinations, difficulty sleeping,
nightmares, and memory loss. It is true that the notes also
 GHANIM V. COLVIN 15

record some improved mood and energy level. But such
observations must be “read in context of the overall
diagnostic picture” the provider draws. Holohan, 246 F.3d at
1205; cf. Lester v. Chater, 81 F.3d 821, 833 (9th Cir. 1995)
(“Occasional symptom-free periods . . . are not inconsistent
with disability.”). The fact that a person suffering from
depression makes some improvement “does not mean that the
person’s impairment[] no longer seriously affect[s] [his]
ability to function in a workplace.” Holohan, 246 F.3d at
1205; see also Ryan, 528 F.3d at 1200–01.6

Dr. Youdelis-Flores, Blatchford, Geiger, and McCann’s
opinions about Ghanim’s cognitive and social functioning
and ability to engage in meaningful adult activities or
employment also do not conflict with Ghanim’s daily
activities. Such a conflict may justify rejecting a treating
provider’s opinion. See Morgan v. Comm’r of Soc. Sec.
Admin., 169 F.3d 595, 600–02 (9th Cir. 1999) (considering an
inconsistency between a treating physician’s opinion and a
claimant’s daily activities a specific and legitimate reason to
discount the treating physician’s opinion). But this principle
has no application here because a holistic review of the record
does not reveal an inconsistency between the treating
providers’ opinions and Ghanim’s daily activities. Although

6
Similarly, the ALJ’s example of one note, out of over one hundred
pages of treatment notes, where Blatchford states that he was surprised by
Ghanim’s request for a caretaker because Ghanim did not appear to be
impaired psychiatrically, is not substantial evidence of a conflict between
the treatment notes and the treating providers’ opinions regarding the
severity of Ghanim’s impairment. In fact, the statement is irreconcilable
with Harborview Medical Center’s own treatment plan; by that point, Dr.
Youdelis-Flores had already prescribed various medications to address
psychiatric problems, and the treatment team, including Blatchford, was
monitoring Ghanim’s progress.
16 GHANIM V. COLVIN

Ghanim performed some basic chores and occasionally
socialized, the record also reveals that he relied heavily on his
caretaker, struggled with social interactions, and limited
himself to low-stress environments. A claimant need not be
completely incapacitated to receive benefits. Smolen, 80 F.3d
at 1284 n.7. Ghanim’s limited daily activities are not in
tension with the opinions of his treating providers.

The ALJ also discounted the opinions of the treating
providers because they were based largely on Ghanim’s self-
reports, which the ALJ found not credible. If a treating
provider’s opinions are based “to a large extent” on an
applicant’s self-reports and not on clinical evidence, and the
ALJ finds the applicant not credible, the ALJ may discount
the treating provider’s opinion. Tomasetti v. Astrue, 533 F.3d
1035, 1041 (9th Cir. 2008); see also Bayliss, 427 F.3d at
1217. However, when an opinion is not more heavily based
on a patient’s self-reports than on clinical observations, there
is no evidentiary basis for rejecting the opinion. See Ryan,
528 F.3d at 1199–1200. Here, the letter from Dr. Youdelis-
Flores and Blatchford and the evaluation from Geiger and
McCann discuss the providers’ observations, diagnoses, and
prescriptions, in addition to Ghanim’s self-reports. The ALJ
offered no basis for his conclusion that these opinions were
based more heavily on Ghanim’s self-reports, and substantial
evidence does not support such a conclusion.

In sum, the ALJ improperly discounted the opinions of
Ghanim’s treating providers as to the severity of Ghanim’s
condition and his ability to work because the record revealed
occasional indicia of improvement, a minimal capacity to
perform basic chores, and some reliance by treating providers
 GHANIM V. COLVIN 17

on Ghanim’s self-reports.7 This is not an adequate
evidentiary basis to reject the opinions of a treating physician
or other treating providers.8

2. Ghanim’s credibility

“In assessing the credibility of a claimant’s testimony
regarding subjective pain or the intensity of symptoms, the
ALJ engages in a two-step analysis.” Molina, 674 F.3d at
1112 (citing Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.
2009)). “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.” Vasquez, 572 F.3d at
591. “If the claimant meets the first test and there is no
evidence of malingering, the ALJ can only reject the
claimant’s testimony about the severity of the symptoms if
she gives ‘specific, clear and convincing reasons’ for the
rejection.” Id. (quoting Lingenfelter v. Astrue, 504 F.3d

7
Aside from the reasons discussed supra, the ALJ does not state any
other reason for rejecting the opinions of the treating providers.
Accordingly, we do not consider whether any other record evidence might
provide an adequate basis for rejecting any of the treating providers’
opinions.
8
In light of the ALJ’s significant errors in evaluating the opinions of
Ghanim’s treating providers, particularly the opinion of Dr. Youdelis-
Flores, we need not address whether the ALJ also erred in rejecting certain
favorable opinions of the examining physicians. We note, however, that
the ALJ did not discuss the examining physicians’ opinions that Ghanim
suffered from an anxiety disorder. As a general matter, the opinion of an
examining doctor, like the opinion of a treating doctor, “can only be
rejected for specific and legitimate reasons that are supported by
substantial evidence in the record.” Lester, 81 F.3d at 830–31.
18 GHANIM V. COLVIN

1028, 1036 (9th Cir. 2007)).9 “General findings are
insufficient; rather, the ALJ must identify what testimony is
not credible and what evidence undermines the claimant’s
complaints.” Lester, 81 F.3d at 834.

An ALJ may consider a range of factors in assessing
credibility, including “(1) ordinary techniques of credibility
evaluation, such as the claimant’s reputation for lying, prior
inconsistent statements concerning the symptoms, and other
testimony by the claimant that appears less than candid;
(2) unexplained or inadequately explained failure to seek
treatment or to follow a prescribed course of treatment; and
(3) the claimant’s daily activities.” Smolen, 80 F.3d at 1284;
accord Orn, 495 F.3d at 636. “When evidence reasonably
supports either confirming or reversing the ALJ’s decision,
we may not substitute our judgment for that of the ALJ.”
Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1196
(9th Cir. 2004).

Here, the ALJ determined that Ghanim’s “medically
determinable impairments could reasonably be expected to
cause some of the alleged symptoms; however, [Ghanim’s]
statements concerning the intensity, persistence and limiting
effects of these symptoms are not credible . . . .” The ALJ

9
We have previously stated that the “specific, clear and convincing”
standard applies unless an ALJ makes an actual finding of malingering.
Robbins, 466 F.3d at 883. This language in Robbins is in some tension
with the above language in Vasquez providing that the “specific, clear and
convincing” standard applies unless there is evidence of malingering.
Vasquez, 572 F.3d at 591. The government does not argue that a lesser
standard should apply here; instead, it argues only that the ALJ provided
clear and convincing reasons for rejecting Ghanim’s testimony as not
credible. Accordingly, we do not address whether mere evidence of
malingering might justify a lesser standard.
 GHANIM V. COLVIN 19

provided several reasons for finding Ghanim’s testimony not
credible.

First, the ALJ rejected Ghanim’s testimony because he
found it inconsistent with the treatment records. In support
of his conclusion, the ALJ cited treatment notes that
discussed Ghanim’s “good eye contact, organized and logical
thought content, and focused attention.” These observations
of cognitive functioning during therapy sessions do not
contradict Ghanim’s reported symptoms of depression and
social anxiety. The ALJ also pointed to several portions of
the treatment notes that describe Ghanim as “upbeat,”
“smiling very brightly,” and “more talkative about positive
things,” and one note from Blatchford expressing surprise at
Ghanim’s request for a caretaker. As explained, however, the
treatment records must be viewed in light of the overall
diagnostic record. See Holohan, 246 F.3d at 1205, 1208;
Ryan, 528 F.3d at 1200–01. When read as a whole, the
treatment notes do not undermine Ghanim’s testimony.
Rather, they consistently reveal that, despite some occasional
signs of improvement, Ghanim continued to suffer frequent
nightmares, hallucinations, social anxiety, difficulty sleeping,
and feelings of hopelessness.

Next, the ALJ rejected Ghanim’s testimony as
inconsistent with Dr. Dees and Dr. McDuffee’s examining
evaluations. The ALJ recited facts from the examining
physicians’ evaluations about Ghanim’s cognitive capabilities
and his generally pleasant demeanor. First, the ALJ’s
reliance on Dr. McDuffee and Dr. Dees’s observations about
cognitive functioning is misplaced; Ghanim primarily
testified that nightmares, insomnia, social anxiety, and
depression—not any cognitive impairments—caused him
difficulty. Second, the ALJ improperly cherry-picked some
20 GHANIM V. COLVIN

of Dr. Dees’s characterizations of Ghanim’s rapport and
demeanor instead of considering these factors in the context
of Dr. Dees’s diagnoses and observations of impairment. See
Ryan, 528 F.3d at 1200–01; Holohan, 246 F.3d at 1205, 1208.
For instance, Dr. Dees also stated that Ghanim appeared
“quite anxious at this time” and “endorse[d] symptoms of
PTSD,” and he diagnosed Ghanim with depressive disorder
NOS, PTSD, anxiety disorder NOS.

The ALJ also concluded that Ghanim was not credible
because his testimony conflicted with his own previous
statements. First, the ALJ pointed to Ghanim’s prior self-
reports of social interactions. But Ghanim did not testify that
he never left his apartment or socialized; rather, he testified
that he often stayed home because he did not like to interact
with people and that he relied heavily on one friend. This
testimony is consistent with his prior self-reports, which
reflect only limited socializing, often with a few friends who
assisted with his chores.10 The ALJ also found Ghanim not
credible because he sometimes—but not always—requested
an interpreter. Ghanim’s periodic need for a translator does
not impugn his credibility; as Ghanim testified, when he is
particularly anxious or aggravated, understanding English
becomes more difficult. This explanation is borne out by the
record. His treating providers indicated that stress impacts
his cognitive functioning and specifically noted that he
reported difficulty speaking English when under stress.

10
The dissent states that Ghanim testified that he “only went outside
when accompanied by his friend.” Dissent at 25. The record simply does
not bear this out. Ghanim testified that his friend and caretaker Al-Haider
came to visit often, that he relied heavily on Al-Haider’s assistance, that
he did not like to go out, and that Al-Haider would come by and take him
outside. Nowhere does Ghanim testify that he never went outside without
Al-Haider.
 GHANIM V. COLVIN 21

Finally, the ALJ discounted Ghanim’s testimony because he
received unemployment benefits after the alleged onset date
of his disability. Continued receipt of unemployment benefits
does cast doubt on a claim of disability, as it shows that an
applicant holds himself out as capable of working. See
Copeland v. Bowen, 861 F.2d 536, 542 (9th Cir. 1988). But
here, Ghanim actually declined unemployment benefits
within about a month of his onset date; rather than undercut
his claim of disability, this prompt refusal of unemployment
benefits supports it.

Next, the ALJ found Ghanim not credible based on his
daily activities. Engaging in daily activities that are
incompatible with the severity of symptoms alleged can
support an adverse credibility determination. See Orn,
495 F.3d at 639; Batson, 359 F.3d at 1196. But here, as
described, the daily activities, which included completing
basic chores, sometimes with the help of a friend, and
attending occasional social events, do not contradict
Ghanim’s testimony. Daily activities may also be “grounds
for an adverse credibility finding ‘if a claimant is able to
spend a substantial part of his day engaged in pursuits
involving the performance of physical functions that are
transferable to a work setting.’” Orn, 495 F.3d at 639
(quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)).
However, there is no indication here that the limited activities
Ghanim engaged in, often with the help of a friend, either
comprised a “substantial” portion of Ghanim’s day, or were
“transferrable” to a work environment. Id.; see also Smolen,
80 F.3d at 1284 n.7 (recognizing that “many home activities
may not be easily transferrable to a work environment”).

Finally, the ALJ discredited Ghanim’s testimony because
other record evidence “casts additional doubt on the
22 GHANIM V. COLVIN

reliability of [Ghanim’s] self-report and on his motivation to
alleviate symptoms.” None of the other evidence identified
by the ALJ can sustain an adverse credibility determination.
It is unclear why a clinical assessment that Ghanim exhibits
narcissistic traits would cast doubt on his credibility.
Ghanim’s pursuit of an unrelated discrimination suit is utterly
irrelevant to his credibility. Even if Ghanim’s expressed
desire to receive disability benefits casts some doubt on the
veracity of his testimony, see Matney ex rel. Matney v.
Sullivan, 981 F.2d 1016, 1020 (9th Cir. 1992), standing alone,
this scintilla of evidence cannot support an adverse credibility
determination.11

3. Lay evidence

“Lay testimony as to a claimant’s symptoms or how an
impairment affects the claimant’s ability to work is
competent evidence that the ALJ must take into account.”
Molina, 674 F.3d at 1114. An ALJ may reject a lay witness’s
testimony only “upon giving a reason germane to that
witness.” Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007).
Ghanim argues that the ALJ failed to give adequate
consideration to a statement by Majid Al-Haider, his friend

11
The dissent accuses us of being “blissfully oblivious” to the serious
problem of fraudulent disability claims. See Dissent at 24–25. We are
not. Undoubtedly, some claimants abuse the system. We simply do not
endorse our colleague’s apparent belief that those who report suffering
from depression are “often” faking it. Id. Such a statement is neither
appropriate nor useful to our task of reviewing individual claims based on
an impairment the SSA has recognized as potentially disabling. See
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.04. Accordingly, we have
analyzed Ghanim’s claim on the facts of his case, rather than on the
possibility that others may fake such conditions.
 GHANIM V. COLVIN 23

and caretaker. This issue is waived because Ghanim did not
raise it in district court. Greger, 464 F.3d at 973.

4. Ability to perform past relevant work

An ALJ may use the testimony of a vocational expert to
determine whether the claimant can perform past relevant
work. 20 C.F.R. § 404.1566(e). An ALJ may rely on a
vocational expert’s testimony that is based on a hypothetical
that “contain[s] all of the limitations that the ALJ found
credible and supported by substantial evidence in the record.”
Bayliss, 427 F.3d at 1217. However, if an ALJ’s hypothetical
is based on a residual functional capacity assessment that
does not include some of the claimant’s limitations, the
vocational expert’s testimony “has no evidentiary value.”
Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1166
(9th Cir. 2008). In determining a claimant’s residual
functional capacity, the ALJ must consider all of a claimant’s
medically determinable impairments, including those that are
not severe. 20 C.F.R. § 404.1545(a)(2).

Here, the ALJ determined that Ghanim had a residual
functional capacity to follow simple instructions in English,
to carry out simple tasks, to work on a regular basis, and to
respond appropriately to supervision and coworkers.
However, this determination is flawed because, as explained,
the ALJ improperly discounted medical evidence and
Ghanim’s testimony. Accordingly, the ALJ’s reliance on the
vocational expert’s opinion that an individual with the
aforementioned residual functional capacity could perform
the work of a kitchen helper and a commercial cleaner was
error. Carmickle, 533 F.3d 1166; Bayliss, 427 F.3d at 1217.
24 GHANIM V. COLVIN

IV. CONCLUSION

The ALJ’s reasons for discounting the opinions of
Ghanim’s treating providers and discrediting Ghanim’s
testimony are not supported by substantial evidence. These
errors infected the ALJ’s residual functional capacity
assessment and his determination that Ghanim was able to
perform past relevant work as a kitchen helper and a
commercial cleaner. We therefore reverse the district court’s
judgment affirming the ALJ’s decision and remand with
instructions to the district court to remand this case to the
Commissioner for further proceedings consistent with this
opinion.

REVERSED and REMANDED.

Chief Judge KOZINSKI, dissenting:

Ghanim doesn’t allege a physical disability—he claims to
suffer from sleeplessness, recurring nightmares and
depression. These aren’t the kind of symptoms that are
subject to clinical observations. We’d expect a treatment
provider to rely heavily on self-reporting in evaluating such
claims, and that’s exactly what happened here.

The ALJ didn’t put much stock in that self-reporting
because he doubted Ghanim’s credibility—and with good
reason. Claims of depression are often made in fraudulent
disability applications because they’re easy to fake:
Applicants can be taught “how to intentionally fail memory
tests, how to dress . . . and how to present their demeanor.”
Pervaiz Shallwani & Damian Paletta, Ex-Cops, Firefighters
 GHANIM V. COLVIN 25

Charged with Disability Fraud, Wall St. J., Jan. 8, 2014, at
A2. This is a serious—and costly—problem of which many
appellate judges seem blissfully oblivious.

Ghanim’s story was riddled with inconsistencies. At the
hearing, Ghanim painted a picture of himself as a recluse who
couldn’t lead a normal life due to his mental illness. He said
he was unable to cook for himself or do his own laundry and
only went outside when accompanied by his friend.

But Ghanim’s own written submissions show that he
regularly went for walks—sometimes alone, made his own
food and had no problems performing basic grooming. He
had no difficulty interacting with other people, including his
landlord, had many friends and attended church. A woman
who knew Ghanim for ten years said he cooks, washes his
own dishes, takes walks downtown and sometimes comes to
her house to watch a movie or have lunch.

The doctor who performed Ghanim’s diagnostic exam
suspected he was malingering because he claimed to be
unable to remember his date of birth, or the city he was in at
the time of the exam. Ghanim says that his translator was
poor. But he admits he understands English, previously
interacted in English without a translator and worked briefly
for the United States Army as an educator on Iraqi language
and customs.

The ALJ’s finding that the treatment providers’ reports
conflicted with treatment notes and the record as a whole was
also backed by substantial evidence. The treatment notes
present mixed evidence, some of which supports a finding
that Ghanim is disabled, and some of which cuts the other
way. For example, Ghanim self-reported on a number of
26 GHANIM V. COLVIN

occasions that he was feeling better with medication,
although at other times he reported no improvement. And
other parts of the record, which show Ghanim engaged in a
wide range of daily activities and social interaction, conflict
with the treatment providers’ assertion that he had a mental
illness so debilitating he was unable to work.

The record might be read to support a finding that
Ghanim was disabled, but “‘where the evidence is susceptible
to more than one rational interpretation,’ we must uphold the
Commissioner’s decision.” Sandgathe v. Chater, 108 F.3d
978, 980 (9th Cir. 1997) (quoting Andrews v. Shalala,
53 F.3d 1036, 1039–40 (9th Cir. 1995)). If my colleagues
want to give Ghanim an undeserved victory, they have the
votes to do it. But it’s unfair of them to claim the ALJ’s
decision is not supported by the record when it clearly is.