Treichler v. Commissioner of Social Security Administration

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ALLEN L. TREICHLER, No. 12-35944
Plaintiff-Appellant,
D.C. No.
v. 3:11-cv-01333-SI

COMMISSIONER OF SOCIAL SECURITY
ADMINISTRATION, OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding

Argued and Submitted
May 14, 2014—Portland, Oregon

Filed December 24, 2014

Before: Arthur L. Alarcón, A. Wallace Tashima, and
Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Ikuta;
Partial Concurrence and Partial Dissent by Judge Tashima
2 TREICHLER V. COMM’R OF SOC. SEC.

SUMMARY*

Social Security

The panel affirmed in part and reversed in part the district
court’s decision affirming in part and reversing and
remanding in part the Social Security Commissioner’s
denial of Allen Treichler’s application for disability insurance
benefits pursuant to the Social Security Act.

The panel held that the administrative law judge erred in
failing to provide specific reasons for rejecting Treichler’s
testimony regarding the severity of his symptoms, and
reversed the district court’s decision to the extent it affirmed
the ALJ’s credibility determination. The panel also held that
the record does not compel a finding of disability, and
remanded to the district court to remand to the agency for
further proceedings.

Judge Tashima concurred in part and dissented in part.
Judge Tashima agreed with the majority that the ALJ erred
in discrediting Treichler’s medically determinable pain and
symptom testimony based on a boilerplate credibility
determination, but disagreed with the majority’s remand for
further proceedings. Judge Tashima would hold that the three
factors of the credit-as-true rule were satisfied and that there
was little doubt that Treichler was disabled, and he would
remand for the award of benefits.

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 TREICHLER V. COMM’R OF SOC. SEC. 3

COUNSEL

James S. Coon (argued), Swanson, Thomas, Coon & Newton,
Portland, Oregon, for Plaintiff-Appellant.

Gerald J. Hill (argued), Assistant Regional Counsel; David
Morado, Regional Chief Counsel, Social Security
Administration, Seattle, Washington; S. Amanda Marshall,
United States Attorney; Kelly A. Zusman, Assistant United
States Attorney, Portland, Oregon, for Defendant-Appellee.

OPINION

IKUTA, Circuit Judge:

Allen Treichler appeals the district court’s decision
affirming in part and reversing and remanding in part the
Social Security Commissioner’s denial of his application for
disability insurance benefits pursuant to the Social Security
Act. He argues that the administrative law judge (ALJ) failed
to provide sufficient reasons for finding him not credible, and
therefore erred in rejecting his disability claim. He also
contends that in light of this error, we should remand his case
to the Commissioner for the payment of benefits. We agree
the ALJ erred in failing to identify the portions of Treichler’s
testimony the ALJ found not credible, and in failing to
explain how the ALJ arrived at that conclusion. Given the
conflicts and ambiguity that remain in the record, however,
we remand for further proceedings rather than for an award
of benefits.
4 TREICHLER V. COMM’R OF SOC. SEC.

I

Treichler worked as a tree trimmer until July 14, 2004,
when he fell out of a tree and sustained fractures to his
lumbar spine, right tibia, right heel, and left ankle. According
to the evidence in the record, Treichler’s fractures healed
well, except for his left ankle, which developed osteomyelitis
and was eventually fused.

After his surgeries, Treichler received an independent
medical examination from Dr. Mark Leadbetter, an
orthopedic surgeon, in November 2005. Treichler’s chief
complaint was lower back pain, right knee pain and ankle
pain. He also reported that he had “normal bowel and bladder
control,” but had “difficulty with evacuation.” After
reviewing Treichler’s medical history and performing a
physical examination, Dr. Leadbetter concluded that all of
Treichler’s conditions, except the fractured left ankle, were
medically stationary as of that date. He also opined that
Treichler would be able to participate in vocational assistance
activities, though weight-bearing activities would be
hampered by his left ankle condition. According to Dr.
Leadbetter, Treichler “would be able to stand for a total of
two hours at a time in an eight hour day” but “would have to
have reasonable breaks.”

On the same day as Treichler’s examination by Dr.
Leadbetter, an occupational therapist conducted an outpatient
physical capacity evaluation of Treichler. According to the
evaluation, Treichler demonstrated residual physical
capacities in the sedentary-light work range, and could sit,
stand, and walk, each for 60 minutes at a time, four to six
hours per day; could occasionally lift 20 pounds from waist
to chest level and from waist to overhead level; occasionally
 TREICHLER V. COMM’R OF SOC. SEC. 5

carry ten pounds up to 50 feet; push and pull 44 pounds
occasionally; perform light, repetitive work; frequently bend
and twist; occasionally do a partial squat; and climb limited
stairs. Treichler agreed with this assessment.

In 2006, Treichler enrolled in a return-to-work program
for becoming a cost estimator. A position as a cost estimator
would require Treichler to sit for up to 30 minutes at a time
for a total of four hours a day, and stand for four hours a day.
The cost estimator could frequently change positions and
would have to walk occasionally.

A July 2006 report from Dr. Craig McNabb, Treichler’s
treating physician, stated that he had reviewed the job
description for cost estimator and felt “that [Treichler] could
tolerate this job.” The same medical report stated that
Treichler was on an “intermittent catheterization program”
for his “neurogenic bladder,” and that “[h]e seems to be
tolerating it fairly well but has continued to have some
problems with urinating and the intermittent catheterization
is allowing him to empty his bladder fully.” Dr. McNabb
also noted that Treichler was taking methadone for pain. Dr.
McNabb subsequently confirmed to the worker’s
compensation insurance company that he would release
Treichler for the position as cost estimator. Dr. Charles
Pederson, one of Treichler’s surgeons, also released Treichler
for the job.

In March 2007, Treichler filed an application for
disability and disability insurance benefits. He had been
seeing Dr. Kent Toland, a urologist, for a urinary tract
infection. Dr. Toland advised Treichler that he should
catheterize at least twice a day. A nurse had noted that
Treichler’s “bladder seems to be able to trigger a normal
6 TREICHLER V. COMM’R OF SOC. SEC.

pressure but unable to sustain enough of a contraction to
empty his bladder completely. He is having large postvoid
residuals. This is contributing to his urinary frequency and
nocturnal enuresis.” The nurse also reported Treichler’s
claims that he “wet the bed” at night. During his visits to the
urologist, Treichler complained of constipation, but denied
any fecal incontinence.

On August 20, 2007, non-examining state physician Dr.
Sharon Eder reviewed Treichler’s medical file and completed
a physical residual functional capacity assessment. Dr. Eder
concluded that Treichler could lift and/or carry 20 pounds
occasionally and ten pounds frequently, stand and/or walk for
a total of at least two hours in an eight-hour workday, sit for
a total of about six hours in an eight-hour workday, and
occasionally balance, stoop, kneel, crouch and crawl. Non-
examining state physicians Dr. Martin Kehrli and Dr. Jeffrey
Wheeler confirmed this assessment.

Treichler’s disability claim was denied on August 22,
2007, and again upon reconsideration on January 9, 2008.
Treichler filed a written request for a hearing on February 4,
2008.

In March 2008, Dr. McNabb reported that methadone
“seems to be controlling [Treichler’s pain] adequately.” A
subsequent report in September 2008 stated that while
Treichler continued to have pain, “[t]he methadone does help
significantly.” A year later, Dr. McNabb stated that the
methadone “seems to be allowing [Treichler] to be somewhat
functional without any significant decrease in his abilities,”
though it also noted that Treichler “still is not very active
because it does not take all of his pain away.” And in
September 2009, Dr. McNabb reported that Treichler “states
 TREICHLER V. COMM’R OF SOC. SEC. 7

that the methadone is making his life tolerable.” While “he
still has significant amount of pain at times,” Treichler
reported that “for the most part he is able to do most of his
activities.”

The hearing before the ALJ took place in Albany, Oregon,
on December 15, 2009. Treichler submitted medical records
and testified regarding the severity and impact of his
symptoms. Treichler claimed he was “not very mobile,” and
that he frequently experienced severe pain in his back and
right ankle. Treichler testified that although he can stand and
walk, it causes pain and he has to sit down after five to ten
minutes. He also stated that he drives a car a short distance,
can do household chores if he has to, takes care of his dog,
and goes fishing occasionally. In addition, he works in his
woodworking shop when he gets bored. Treichler described
a typical day as getting up, making himself a meal, playing
with his pets, and sometimes doing yard work. According to
Treichler, his back is always in pain and he has a really bad
day “[p]robably twice a week.” On a bad day, he may stay in
bed all day. Treichler testified that methadone “takes away
a lot of it [pain], but it—I mean nothing takes away all of it.”

When asked about his urinary incontinence, Treichler
testified that his “bladder just lets go” and he “wet[s]
[him]self” around two to three times a week, “a lot at night.”
He also related that on a “bad week during the daytime” he
might lose bladder control “[p]robably three times.”
Treichler’s bladder difficulties require him to self-catheterize
up to four times a day. With regard to fecal incontinence,
Treichler claimed that “about once or twice a month” he “just
lose[s] it.”
8 TREICHLER V. COMM’R OF SOC. SEC.

His wife testified at the hearing and described the lifestyle
changes she and her husband have had to make following his
surgeries. She also described how Treichler “really has a
problem [with urinary incontinence] at night. You know, I’ve
noticed two or three times during the night a lot of times he’ll
even have to change his clothes.”

The hearing concluded with testimony from a vocational
expert. The ALJ described a hypothetical person who had the
following characteristics: the person had “the same age,
education and vocational background as Mr. Treichler”; the
person “could lift 20 pounds occasionally, 10 pounds
frequently,” could “sit[] six hours out of a normal eight-hour
work day” and “stand and walk two hours,” “should never be
required to climb,” although capable “of occasionally
balancing, stooping, kneeling, crouching and crawling”; the
person should “avoid even moderate exposure to hazards,”
and “have the option . . . . to change position at least four
times an hour to alleviate his discomfort”; and finally the
person “is going to need to be able to go to the bathroom
essentially at will, because of incontinence issues.” The
expert testified that there were a significant number of jobs
available in the national economy and in the region where
Treichler lived that could be performed by someone with
these physical characteristics, including the job of a document
sorter.

Treichler’s attorney then inquired whether a person who
“twice a week . . . [is] going to make a mess and need time to
. . . either take a shower or clean up or he’s going to be unable
to clean up and going to be a—frankly, a[n] ol[]factory
nuisance” would be able to maintain employment. The
vocational expert testified that such a person would not be
able to do so. The attorney next asked about a different
 TREICHLER V. COMM’R OF SOC. SEC. 9

hypothetical person, one who “would miss more than two
days of work per month on a random and unpredictable
basis.” The expert again opined that no work would be
available for someone who would have to miss that much
work.

The ALJ followed up by asking whether allowing breaks
for self-catheterization was “an acceptable accommodation
from employers,” and the expert agreed that “it can be
worked around.” The ALJ asked whether a person could use
two 10 to 15 minute breaks for self-catheterization and still
be able to maintain employment. The vocational expert said
that those breaks were not “excessive.” But when asked by
Treichler’s attorney whether an employer would tolerate a
situation where “twice a month at randomly and
unpredictably there’s a loss of bowel control despite best
efforts,” the expert said that there would not be available
work for such a person.

The ALJ issued a written decision denying Treichler’s
application for disability on January 5, 2010. To assess
whether Treichler was disabled, the ALJ employed the
five-step sequential evaluation1 for determining disability. At

1
The five-step sequential evaluation of disability is set forth at 20 C.F.R.
§ 404.1520. Under the test:

A claimant must be found disabled if she proves:
(1) that she is not presently engaged in a substantial
gainful activity[,] (2) that her disability is severe, and
(3) that her impairment meets or equals one of the
specific impairments described in the regulations. If
the impairment does not meet or equal one of the
specific impairments described in the regulations, the
claimant can still establish a prima facie case of
10 TREICHLER V. COMM’R OF SOC. SEC.

step one, the ALJ determined that Treichler had not engaged
in substantial gainful activity since the alleged onset date of
his disability, which was the date of Treichler’s fall. The ALJ
determined at the second step that Treichler suffered from
severe impairments: status post fractures of the lumbar spine,
left wrist, right ankle, right tibia, and left tibia, neurogenic
bladder, cauda equina syndrome, and chronic pain syndrome.
The ALJ then found at step three that none of Treichler’s
impairments, either alone or in combination, met or equaled
any of the SSA’s listed impairments.

Before considering step four of the sequential evaluation
process, the ALJ had to assess Treichler’s residual functional
capacity (“RFC”), see 20 C.F.R. § 404.1520(a)(4)(iv), which
is “the most [the claimant] can still do despite [the
claimant’s] limitations.” Id. § 404.1545(a)(1). The RFC
assessment is “based on all the relevant medical and other
evidence” in the claimant’s record. Id. § 404.1520(e).

In his written decision, the ALJ set out his determination
regarding Treichler’s RFC based on the ALJ’s credibility
findings and the weight he assigned to various pieces of

disability by proving at step four that in addition to the
first two requirements, she is not able to perform any
work that she has done in the past. Once the claimant
establishes a prima facie case, the burden of proof shifts
to the agency at step five to demonstrate that the
claimant can perform a significant number of other jobs
in the national economy. This step-five determination
is made on the basis of four factors: the claimant’s
residual functional capacity, age, work experience and
education.

Hoopai v. Astrue, 499 F.3d 1071, 1074–75 (9th Cir. 2007) (internal
citations and quotation marks omitted).
 TREICHLER V. COMM’R OF SOC. SEC. 11

medical evidence. According to the ALJ, Treichler could
perform light work, with some restrictions.2 After
summarizing Treichler’s testimony at the hearing regarding
his pain and limited activities, the ALJ stated that Treichler’s
“medical determinable impairments could reasonably be
expected to cause the alleged symptoms,” but that Treichler’s
“statements concerning the intensity, persistence and limiting
effects of these symptoms are not credible to the extent they
are inconsistent with the above residual functional capacity
assessment.”

The ALJ next summarized the medical evidence and
indicated what weight he assigned to the various reports. The
ALJ noted that Dr. McNabb and Dr. Pederson opined that
Treichler’s symptoms were medically stationary. The ALJ
gave great weight to Dr. Leadbetter’s conclusion that
Treichler’s condition had stabilized and Treichler could
participate in vocational assistance activities, including being
able to stand for two hours at a time with reasonable breaks.
The ALJ also gave weight to several physical capacity
evaluations that stated that Treichler had the ability to
perform sedentary-light work. Three non-examining
consulting physicians agreed that Treichler had a RFC of
light work with some movement limitations, and the ALJ
gave “these assessments controlling weight as they are
consistent with the medical evidence of record.”

2
Those restrictions were that Treichler “must change positions every 15
minutes, can occasionally balance, stoop, kneel, crouch, and crawl, can
perform unskilled work consisting of simple tasks with simple
instructions, should have no more than moderate exposure to unprotected
heights, moving machinery, and other workplace hazards, and needs to be
in close proximity to a bathroom.”
12 TREICHLER V. COMM’R OF SOC. SEC.

Moving to step four, the ALJ found that Treichler was
unable to perform any of his past relevant work as a tree
trimmer and cable installer. At step five, the ALJ relied on
the vocational expert’s testimony that jobs existed in the
national economy for someone with Treichler’s age,
education, experience, and RFC. Specifically, the vocational
expert stated that a person with Treichler’s RFC could work
as a document sorter. As a result, the ALJ held that Treichler
was not disabled under the Social Security Act, 42 U.S.C.
§ 416(i), 423(d). The Appeals Council denied Treichler’s
request for review of the ALJ’s decision.

Following an unsuccessful administrative appeal,
Treichler sought review of the Commissioner’s decision in
district court. The district court upheld the ALJ’s
determination that Treichler’s testimony regarding the
“intensity, persistence and limiting effects” of his symptoms
was not credible, but ruled that the ALJ erred by implicitly
rejecting Treichler’s wife’s testimony, without providing
germane reasons for doing so. The court therefore remanded
to the ALJ for further proceedings.

Treichler now appeals the district court’s decision
affirming the ALJ’s adverse credibility determination, and
argues that the case should be remanded for an award of
benefits. Although Treichler prevailed before the district
court, he may nevertheless appeal the decision, because it
does not grant the full measure of relief requested. See
Forney v. Apfel, 524 U.S. 266, 271 (1998).

II

We begin by considering the legal framework for
addressing Treichler’s claims that the ALJ erred in making
 TREICHLER V. COMM’R OF SOC. SEC. 13

his credibility determination, and that we should therefore
remand his case for an award of benefits. We review de novo
a district court’s decision to affirm in part, reverse in part, and
remand to the Commissioner. Harman v. Apfel, 211 F.3d
1172, 1174 (9th Cir. 2000). We review the district court’s
decision to remand for further proceedings or to direct a
payment of benefits for an abuse of discretion. Id. at 1173.

A

In Title II of the Social Security Act, Congress entrusted
the Commissioner with the power and authority to enact rules
and regulations that govern the disability determination. See,
e.g., 42 U.S.C. §§ 405, 421, 423. In particular, Congress
authorized the Commissioner to “make findings of fact, and
decisions as to the rights of any individual applying for a
payment” under the Act. Id. § 405(b)(1). By law, the
disability determination is made by the Commissioner or
authorized state agencies under the Commissioner’s
supervision. See id. §§ 405, 421; 20 C.F.R. § 404.1503. If
the Commissioner’s decision is unfavorable, it must “contain
a statement of the case, in understandable language, setting
forth a discussion of the evidence, and stating the
Commissioner’s determination and the reason or reasons
upon which it is based.” 42 U.S.C. § 404(a). The statute
allows a claimant receiving an adverse decision to obtain
administrative review. Id. § 405(b)(1).

After the final decision by the Commissioner, the
claimant “may obtain a review of such decision by a civil
action” in district court. Id. § 405(g). As with other agency
decisions, federal court review of social security
determinations is limited. We disturb the Commissioner’s
decision to deny benefits “only if it is not supported by
14 TREICHLER V. COMM’R OF SOC. SEC.

substantial evidence or is based on legal error.” Andrews v.
Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995); see also Thomas
v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). For highly
fact-intensive individualized determinations like a claimant’s
entitlement to disability benefits, Congress “places a
premium upon agency expertise, and, for the sake of
uniformity, it is usually better to minimize the opportunity for
reviewing courts to substitute their discretion for that of the
agency.” Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 621
(1966). Consequently, we leave it to the ALJ to determine
credibility, resolve conflicts in the testimony, and resolve
ambiguities in the record. See 42 U.S.C. § 405(g) (directing
that the Commissioner’s “findings . . . as to any fact, if
supported by substantial evidence, shall be conclusive.”);
Andrews, 53 F.3d at 1039.

Even when the ALJ commits legal error, we uphold the
decision where that error is harmless. “We have long
recognized that harmless error principles apply in the Social
Security Act context.” Molina v. Astrue, 674 F.3d 1104,
1115 (9th Cir. 2012). An error is harmless if it is
“inconsequential to the ultimate nondisability determination,”
id. (internal quotation marks omitted), or “if the agency’s
path may reasonably be discerned,” even if the agency
“explains its decision with less than ideal clarity,” Alaska
Dep’t of Envtl. Conserv. v. EPA, 540 U.S. 461, 497 (2004)
(internal quotation marks omitted).

B

If the reviewing court determines “that the agency erred
in some respect in reaching a decision to deny benefits,” Hoa
Hong Van v. Barnhart, 483 F.3d 600, 605 (9th Cir. 2007)
(alterations omitted), and the error was not harmless, Molina,
 TREICHLER V. COMM’R OF SOC. SEC. 15

674 F.3d at 1115, sentence four of § 405(g) authorizes the
court to “revers[e] the decision of the Commissioner of Social
Security, with or without remanding the cause for a
rehearing.”3 Because “a judicial judgment cannot be made to
do service for an administrative judgment,” SEC v. Chenery
Corp., 318 U.S. 80, 88 (1943), when “the record before the
agency does not support the agency action, . . . the agency has
not considered all relevant factors, or . . . the reviewing court
simply cannot evaluate the challenged agency action on the
basis of the record before it, the proper course, except in rare
circumstances, is to remand to the agency for additional
investigation or explanation.” Fla. Power & Light Co. v.
Lorion, 470 U.S. 729, 744 (1985).4 The Supreme Court has
referred to this remand requirement as the “ordinary ‘remand’
rule.” Gonzalez v. Thomas, 547 U.S. 183, 185 (2006)
(internal quotation marks omitted).

The ordinary remand rule applies equally to Social
Security cases. See, e.g., Lingenfelter v. Astrue, 504 F.3d

3
The other type of remand authorized by § 405(g) appears in the sixth
sentence, and allows the reviewing court to remand “where the
Commissioner requests a remand before answering the complaint, or
where new, material evidence is adduced that was for good cause not
presented before the agency.” Hoa Hong Van, 483 F.3d at 605.
4
The Supreme Court has not defined what “rare circumstances,” Lorion,
470 U.S. at 744, would justify a departure from the ordinary remand rule.
An early case suggested that those circumstances would arise only when
remand would be a mere formality. NLRB v. Wyman-Gordon Co.,
394 U.S. 759, 766 n.6 (1969). In later decisions, the Supreme Court has
frowned upon deviations from the ordinary remand rule and has reversed
decisions where we declined to remand to the agency after detecting an
error. See, e.g., Nat’l Ass’n of Home Builders v. Defenders of Wildlife,
551 U.S. 644, 657–58 (2007); Gonzalez v. Thomas, 547 U.S. 183,186–87
(2006); INS v. Ventura, 537 U.S. 12, 16 (2002).
16 TREICHLER V. COMM’R OF SOC. SEC.

1028, 1044 (9th Cir. 2007); Moisa v. Barnhart, 367 F.3d 882,
887 (9th Cir. 2004). While we generally remand to the
agency for “additional investigation or explanation,” Lorion,
70 U.S. at 744, Congress has granted courts some additional
flexibility in § 405(g) “to reverse or modify an administrative
decision without remanding the case for further proceedings.”
Harman v. Apfel, 211 F.3d 1172, 1177–78 (9th Cir. 2000).
“Without this additional authority, a district court could not
remand a case for immediate payment of benefits in
connection with a reversal of the Commissioner’s denial of
benefits but could only remand the case for rehearing.” Id.;
see also Garrison v. Colvin, 759 F.3d 995, 1019 (9th Cir.
2014) (noting that a Social Security case should usually be
remanded to remedy defects in the administrative proceeding,
but that “in appropriate circumstances” § 405(g) authorizes a
court to remand for benefits). We review the exercise of such
authority for an abuse of discretion, reasoning that “Congress
did not state that district courts ‘shall’ exercise this additional
power but simply gave district courts the authority to do so in
an appropriate case,” and therefore the exercise of such
authority “was intended to be discretionary.” Harman, 211
F.3d at 1178. Further, “there are sound practical reasons why
we have viewed our own decisions in this area as
discretionary,” namely because the “decision whether to
remand for further development of the administrative record
or to direct an immediate award of benefits is a fact-bound
determination that arises in an infinite variety of contexts,”
and “[n]arrow rules do not serve well in such a situation.” Id.
at 1177. Our case law strikes a balance between the ordinary
remand rule that generally guides our review of
administrative decisions and the additional flexibility
provided by § 405(g), and thus we generally remand for an
award of benefits only in “rare circumstances,” Moisa,
367 F.3d at 886, “where no useful purpose would be served
 TREICHLER V. COMM’R OF SOC. SEC. 17

by further administrative proceedings and the record has been
thoroughly developed.” Hill v. Astrue, 698 F.3d 1153, 1162
(9th Cir. 2012) (internal quotation marks omitted).

We first described the circumstances where departing
from the ordinary remand rule may be permissible in Varney
v. Sec’y of Health & Human Servs., 859 F.2d 1396 (9th Cir.
1988) (Varney II). In our prior opinion in the same case,
Varney v. Sec’y of Health & Human Servs. (Varney I), we
held it was improper for the ALJ to reject the claimant’s
excess pain testimony as exaggerated and not credible “solely
on the ground that it is not fully corroborated by objective
medical evidence.” 846 F.2d 581, 582, 584 (9th Cir. 1988).
In Varney II, we determined that “no further proceedings
[were] necessary to develop the administrative record,”
859 F.2d at 1400, and there were “no outstanding issues that
must be resolved before a proper disability determination”
could be made, id. at 1401, and therefore took the unusual
step of declaring the claimant to be credible as a matter of
law, see id. at 1398, 1401 (“[I]f the Secretary fails to
articulate reasons for refusing to credit a claimant’s
subjective pain testimony, then the Secretary, as a matter of
law, has accepted that testimony as true.” (internal quotation
marks omitted)). Although such credibility determinations
are generally the perquisite of the agency, see 42 U.S.C.
§ 405(b),(g), we justified this approach as a prophylactic
measure designed to motivate the Commissioner to ensure
“that pain testimony will be carefully assessed and its
importance recognized,” id. at 1398, and also by referring to
equitable concerns about the length of time that had elapsed
since the claimant had filed her application, see id. at
1398–99. Accordingly, because it was “clear from the
administrative record that the ALJ would be required to
award benefits if the claimant’s excess pain testimony were
18 TREICHLER V. COMM’R OF SOC. SEC.

credited,” we remanded for an award of benefits instead of
further proceedings on the claimant’s credibility. Id. at 1401.

We subsequently distilled the Varney rule (sometimes
referred to as the “credit-as-true” rule) into three steps.
Under this procedure, we first ask whether the “ALJ has
failed to provide legally sufficient reasons for rejecting
evidence, whether claimant testimony or medical opinion.”
Garrison, 759 F.3d at 1020; see also Moisa, 367 F.3d at 887.

Second, if the ALJ has erred, we determine whether “the
record has been fully developed,” Garrison, 759 F.3d at
1020, whether there are “outstanding issues that must be
resolved before a determination of disability can be made,”
Moisa, 367 F.3d at 887, and whether further administrative
proceedings would be useful, see Varney II, 859 F.2d at 1399.
Administrative proceedings are generally useful where the
record “has [not] been fully developed,” Garrison, 759 F.3d
at 1020, there is a need to resolve conflicts and ambiguities,
Andrews, 53 F.3d at 1039, or the “presentation of further
evidence . . . may well prove enlightening” in light of the
passage of time, Ventura, 537 U.S. at 18. Cf. Nguyen v.
Chater, 100 F.3d 1462, 1466–67 (9th Cir. 1996) (remanding
for ALJ to apply correct legal standard, to hear any additional
evidence, and resolve any remaining conflicts); Byrnes v.
Shalala, 60 F.3d 639, 642 (9th Cir. 1995) (same); Dodrill v.
Shalala, 12 F.3d 915, 918, 919 (9th Cir. 1993) (same);
Bunnell v. Sullivan, 947 F.2d 341, 348 (9th Cir. 1991) (en
banc) (same). Where there is conflicting evidence, and not all
essential factual issues have been resolved, a remand for an
 TREICHLER V. COMM’R OF SOC. SEC. 19

award of benefits is inappropriate. See, e.g., Faucher v. Sec’y
of Health & Human Servs., 17 F.3d 171, 176 (6th Cir. 1994).5

Third, if we conclude that no outstanding issues remain
and further proceedings would not be useful, we may apply
our prophylactic Varney rule, finding the relevant testimony
credible as a matter of law, see Vasquez v. Astrue, 572 F.3d
586, 600–01 (2008) (Hawkins, J., concurring) (describing
how the Varney rule has been used); Harman v. Apfel,
211 F.3d 1172, 1178–79 (9th Cir. 2000), and then determine
whether the record, taken as a whole, leaves “not the slightest
uncertainty as to the outcome of [the] proceeding,” Wyman-
Gordon, 394 U.S. at 766 n.6.

When all three elements of this Varney rule are satisfied,
a case raises the “rare circumstances” that allow us to
exercise our discretion to depart from the ordinary remand

5
The dissent appears to believe that a court should generally remand for
benefits and may remand for further proceedings only if the record is
incomplete, such as when the ALJ has not heard critical testimony from
a treating physician or if a vocational expert had not considered all
relevant testimony. Dissent at 33, 37. This is directly contrary to our
jurisprudence, which requires remand for further proceedings in all but the
rarest cases, see Moisa, 367 F.3d at 887. Indeed, a court abuses its
discretion if it remands for an award of benefits when not all factual issues
have been resolved. See, e.g., Bunnell v. Barnhart, 336 F.3d 1112,
1115–16 (9th Cir. 2003) (rejecting a petitioner’s appeal of a district court’s
remand for further proceedings instead of for an award of benefits where
there were outstanding issues relating to the severity of the petitioner’s
impairments, whether the petitioner was capable of performing sedentary
work, and whether the ALJ had to credit her testimony as true, or would
be able to adequately explain why he did not credit her pain testimony, per
Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993)).
20 TREICHLER V. COMM’R OF SOC. SEC.

rule.6 Of course, even when those “rare circumstances” are
present, “[t]he decision whether to remand a case for
additional evidence or simply to award benefits is in our
discretion,” Swenson v. Sullivan, 876 F.2d 683, 689 (9th Cir.
1989). See, e.g., Harman v. Apfel, 211 F.3d at 1178 (holding
that the exercise of authority to remand for benefits “was
intended to be discretionary and should be reviewed for abuse
of discretion”). We have frequently exercised our discretion
to remand for further proceedings, rather than for benefits.
See Connett v. Barnhart, 340 F.3d 871, 874–76 (9th Cir.
2003) (citing cases and reaffirming that the reviewing court
retains discretion to remand for further proceedings even
when the ALJ fails “to assert specific facts or reasons to
reject [the claimant]’s testimony”); see also Garrison,
759 F.3d at 1021 (noting that a district court retains the
flexibility to “remand for further proceedings when the record
as a whole creates serious doubt as to whether the claimant is,

6
Our sister circuits are generally in accord with our rule that “the court
can order the agency to provide the relief it denied only in the unusual
case in which the underlying facts and law are such that the agency has no
discretion to act in any manner other than to award or to deny benefits.”
Seavey v. Barnhart, 276 F.3d 1, 11 (1st Cir. 2001); see also Gentry v.
Comm’r of Social Sec., 741 F.3d 708, 730 (6th Cir. 2014) (remanding for
an award of benefits only where “all necessary factual issues have been
resolved, the proof of disability is strong, and opposing evidence is
lacking in substance, . . . or where the proof of disability is
overwhelming”); Williams v. Apfel, 204 F.3d 48, 50 (2d Cir. 2000)
(refusing to remand for an award of benefits because the record did not
“provide[] persuasive evidence of total disability that rendered any further
proceedings pointless”). By contrast, our prophylactic rule that a
claimant’s testimony is credible as a matter of law if the ALJ fails to
provide adequate reasons for discrediting it has been adopted only by the
Eleventh Circuit. See Hale v. Bowen, 831 F.2d 1007, 1012 (11th Cir.
1987).
 TREICHLER V. COMM’R OF SOC. SEC. 21

in fact, disabled within the meaning of the Social Security
Act.”).

III

We turn now to Treichler’s claim that the ALJ erred in
ruling that Treichler’s statements about the limiting effects of
his medical problems were not credible.

The ALJ must make two findings before the ALJ can find
a claimant’s pain or symptom testimony not credible.
42 U.S.C. § 423(d)(5)(A) (explaining that “[a]n individual’s
statement as to pain or other symptoms shall not alone be
conclusive evidence of disability” absent additional findings).
“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.’” Lingenfelter, 504 F.3d
at 1036 (quoting Bunnell, 947 F.2d at 344). Second, if the
claimant has produced that evidence, and the ALJ has not
determined that the claimant is malingering, the ALJ must
provide “specific, clear and convincing reasons for” rejecting
the claimant’s testimony regarding the severity of the
claimant’s symptoms. Smolen v. Chater, 80 F.3d 1273, 1281
(9th Cir. 1996).

Because the “grounds upon which an administrative order
must be judged are those upon which the record discloses that
its action was based,” Chenery Corp., 318 U.S. at 87, the
agency must explain its reasoning. Consequently, to ensure
our appellate review is meaningful, Bunnell, 947 F.2d at 346,
we require the ALJ to “specifically identify the testimony
[from a claimant] she or he finds not to be credible and . . .
explain what evidence undermines the testimony.” Holohan
22 TREICHLER V. COMM’R OF SOC. SEC.

v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001). That
means “[g]eneral findings are insufficient.” Lester v. Chater,
81 F.3d 821, 834 (9th Cir. 1995); see Holohan, 246 F.3d at
1208 (concluding “that the ALJ’s credibility determination
was erroneous” because it was based on the ALJ’s
characterization of “the ‘record in general’”).

Here, the ALJ found that Treichler’s “medically
determinable impairments could reasonably be expected to
cause the alleged symptoms,” and did not find that Treichler
was malingering. The ALJ did not, however, “specifically
identify the testimony” he found not credible. Holohan,
246 F.3d at 1208. Rather, he made only the single general
statement that “the claimant’s statements concerning the
intensity, persistence and limiting effects of these symptoms
are not credible to the extent they are inconsistent with the
above residual functional capacity assessment.” ALJs
routinely include this statement in their written findings as an
introduction to the ALJ’s credibility determination. See, e.g.,
Kamann v. Colvin, 721 F.3d 945, 949–51 (8th Cir. 2013);
Bjornson v. Astrue, 671 F.3d 640, 645–47 (7th Cir. 2012).
After making this boilerplate statement, the ALJs typically
identify what parts of the claimant’s testimony were not
credible and why. See, e.g., Moore v. Colvin, 743 F.3d 1118,
1122 (7th Cir. 2014).

But here, the ALJ stopped after this introductory remark.
This was error and falls short of meeting the ALJ’s
responsibility to provide “a discussion of the evidence” and
“the reason or reasons upon which” his adverse determination
is based. 42 U.S.C. § 405(b)(1). An ALJ’s “vague
allegation” that a claimant’s testimony is “not consistent with
the objective medical evidence,” without any “specific
findings in support” of that conclusion is insufficient for our
 TREICHLER V. COMM’R OF SOC. SEC. 23

review. Vasquez, 572 F.3d at 592. As our sister circuits have
concluded, “[c]redibility findings must have support in the
record, and hackneyed language seen universally in ALJ
decisions adds nothing.” Shauger v. Astrue, 675 F.3d 690,
696 (7th Cir. 2012); see also Hardman v. Barnhart, 362 F.3d
676, 679 (10th Cir. 2004). The ALJ must identify the
testimony that was not credible, and specify “what evidence
undermines the claimant’s complaints.” Reddick v. Chater,
157 F.3d 715, 722 (9th Cir. 1998).

Nor is the error harmless. Because the ALJ set out his
RFC and summarized the evidence supporting his
determination, the government argues that we can reasonably
infer that the ALJ rejected Treichler’s testimony to the extent
it conflicted with that medical evidence. But we cannot
substitute our conclusions for the ALJ’s, or speculate as to the
grounds for the ALJ’s conclusions. See Bunnell, 947 F.2d at
346. Although the ALJ’s analysis need not be extensive, the
ALJ must provide some reasoning in order for us to
meaningfully determine whether the ALJ’s conclusions were
supported by substantial evidence. See Holohan, 246 F.3d at
1208. No such reasoning is present here. Because “the
agency’s path” cannot “reasonably be discerned,” Alaska
Dep’t of Envtl. Conserv., 540 U.S. at 497, we must reverse
the district court’s decision to the extent it affirmed the ALJ’s
credibility determination.

IV

We now come to Treichler’s contention that we should
exercise our discretion to remand his case for an award of
benefits. In making this argument, Treichler points to his
testimony regarding the severity of his urinary incontinence,
fecal incontinence, and disabling pain, and the vocational
24 TREICHLER V. COMM’R OF SOC. SEC.

expert’s testimony that a person who has such problems
would not be able to maintain employment.

We begin our analysis with our three-step framework to
deduce whether this is one of the rare circumstances where
we may decide not to remand for further proceedings. See
Garrison, 759 F.3d at 1020. At the first step, we conclude,
for the reasons stated above, that “the ALJ has failed to
provide legally sufficient reasons for rejecting . . . claimant
testimony.” Id.

Second, we turn to the question whether further
administrative proceedings would be useful. Id.; Varney II,
859 F.2d at 1401. In evaluating this issue, we consider
whether the record as a whole is free from conflicts,
ambiguities, or gaps, whether all factual issues have been
resolved, and whether the claimant’s entitlement to benefits
is clear under the applicable legal rules. See Moisa, 367 F.3d
at 887.

In this case, there are significant factual conflicts in the
record between Treichler’s testimony and objective medical
evidence. With regard to his incontinence issues, Treichler
testified that he “wet[s]” himself “two or three times a week,”
mostly at night, while on a “bad week during the daytime,” he
could lose control of his bladder “[p]robably three times” in
a week. This testimony conflicts with other evidence in the
record as to daytime urinary incontinence. Dr. Toland,
Treichler’s urologist, and the nurses who treated him for his
bladder impairments uniformly observed that Treichler had
difficulty voiding urine during the day, while he suffered
from incontinence at night. For example, an August 24, 2006
progress note reflects that Treichler “has had difficulty
voiding with occasional leakage of urine especially at
 TREICHLER V. COMM’R OF SOC. SEC. 25

nighttime often soaking the bed” leading to a diagnosis of
nocturnal enuresis. Other notes similarly reported that
Treichler claimed that he “gets up multiple times throughout
the night” and “often will wet the bed,” or that Treichler
“feels that he has to strain to empty his bladder, has
significant urinary frequency getting up 5 or more times at
night,” wetting the bed “[a]bout 2–3 times a week.” The
notes consistently report that the incontinence issue occurs at
night, while Treichler claims that he regularly has daytime
problems.

Treichler also testified that he experienced fecal
incontinence where he would “just lose it . . . about once or
twice a month.” The one relevant medical report in the
record on this issue, however, stated that Treichler reported
constipation and “denie[d] any fecal incontinence.” There is
no other evidence of complaints to his doctors or other
medical professionals regarding fecal incontinence.

Finally, Treichler testified that he had debilitating pain
twice a week that resulted in him just laying in bed. Dr.
McNabb, however, noted that Treichler’s pain medication
makes his life “tolerable,” and that he is able to perform the
majority of his activities. At the hearing, Treichler testified
that medication “takes away a lot of it [pain],” while not “all
of it.”

The dissent’s assertion that “the record amply supports
Treichler’s testimony,” Dissent at 34, and therefore a court is
required to remand for an award of benefits, is wrong
factually and legally. The dissent points to single words or
phrases plucked from individual reports in the record to
support its conclusion that Treichler’s pain renders him
disabled. See Dissent at 35. But when read in context, the
26 TREICHLER V. COMM’R OF SOC. SEC.

record indicates only that Treichler required medical
assistance to manage the pain stemming from his injuries; it
does establish that this pain rendered him unemployable.7 In
any event, we are not deciding Treichler’s disability claim de
novo; rather, we are considering whether the district court

7
For instance, the dissent cites Dr. Mullins’s statement in 2004 (just
months after Treichler’s injury) that Treichler “still has considerable
pain,” Dissent at 35, but fails to quote the rest of the sentence, stating that
Treichler “is taking 12 to 18 oxcodone a day to good control.” The
dissent cites Dr. McNabb’s statement from 2009, that Treichler still “has
a significant amount of pain at times,” Dissent at 35, but again skips over
the second half of the sentence, “although for the most part he is able to
do most of his activities” with a lower dosage of pain medications. The
dissent cites Dr. McNabb’s statement in 2006 that the pain “was getting
somewhat constant,” Dissent at 35, but ignores the second half of the
statement “but the pain has been getting somewhat better.” Later in the
same report, Dr. McNabb states that Treichler’s “pain level is 3 out of 10
and usually goes away 3 or 4 hours after he takes his medication,” and that
Treichler was undergoing vocational rehabilitation and was “going to be
doing deskwork, light duty type of activities in the future.” Finally, Dr.
McNabb noted that Treichler intended to decrease his methadone to “10
mg 3 times a day,” and the doctor wanted to “further discuss weaning him
off narcotic medications if we can.” Accordingly, even the reports cited
by the dissent do not establish that Treichler was unable to perform any
sort of work.

The dissent’s other citations are equally unpersuasive. The dissent
cites to a description of Treichler’s pain as “acute,” Dissent at 35, but that
language comes from a report of Treichler’s scrotal testicular pain after an
infection, which was subsequently resolved. The statement by Treichler’s
wife that “some days [Treichler] doesn’t seem like he can move at all,”
Dissent at 35, is not relevant here, since the district court remanded the
case to the ALJ to consider whether there are germane reasons for
disregarding the wife’s testimony, and that ruling is not on appeal here.
The dissent also cites to reports discussing Treichler’s bladder and bowel
problems, Dissent at 35, but all the cited reports state that the bladder
incontinence occurs at night, and the bowel problems do not cause
incontinence.
 TREICHLER V. COMM’R OF SOC. SEC. 27

abused its discretion in determining that there are outstanding
issues in the record that should be decided by the agency
under the ordinary remand rule.

In light of the conflicts and ambiguities in the record, the
district court would not abuse its discretion in concluding that
not all essential factual issues have been resolved, or that “the
record is fully developed and it is clear from the record that
the ALJ would be required to award benefits.” Holohan,
246 F.3d at 1210. Rather, the record raises crucial questions
as to the extent of Treichler’s impairment given
inconsistencies between his testimony and the medical
evidence in the record. These are exactly the sort of issues
that should be remanded to the agency for further
proceedings. See Andrews, 53 F.3d at 1039. Where, as in
this case, an ALJ makes a legal error, but the record is
uncertain and ambiguous, the proper approach is to remand
the case to the agency. For example, in Nguyen v. Chater, the
ALJ failed to give specific and legitimate reasons for
discounting the testimony of a claimant’s spouse regarding
the extent of the claimant’s impairment, but there may have
been contrary medical evidence in the record. 100 F.3d at
1467. We remanded the case to the ALJ for further
proceedings without precluding the ALJ “from reopening the
hearing to receive additional evidence should such a course
of action be deemed appropriate.” Id.; see also Byrnes,
60 F.3d at 642 (holding that the ALJ erred in making
inadequate findings to support his conclusion that the
claimant was not credible and remanding “for further findings
evaluating the credibility of [claimant’s] subjective
complaints,” while noting that on remand the ALJ could deny
benefits if he made adequate findings). The same approach
is appropriate here.
28 TREICHLER V. COMM’R OF SOC. SEC.

Treichler argues that because the ALJ erred, we should
credit his testimony as true. Once we have done so, he
argues, there would be no outstanding issues to resolve and
we should remand for benefits. The dissent likewise contends
that a court must first take the claimant’s testimony as true
and then determine if there are any outstanding issues that
require resolution. Dissent at 38. This is an erroneous
reading of our case law, which requires us to assess whether
there are outstanding issues requiring resolution before
considering whether to hold that the claimant’s testimony is
credible as a matter of law. Garrison, 759 F.3d at 1020;
Connett, 340 F.3d at 876. Under the dissent’s approach, a
court would have to disregard any evidence in conflict with
the claimant’s testimony, and remand for benefits even if the
objective medical evidence in the record indicated that the
claimant was not disabled. But an ALJ’s failure to provide
sufficiently specific reasons for rejecting the testimony of a
claimant or other witness does not, without more, require the
reviewing court to credit the claimant’s testimony as true. As
we have explained in the context of testimony regarding
impairments due to excess pain, “[a]n ALJ cannot be required
to believe every allegation of disabling pain, or else disability
benefits would be available for the asking, a result plainly
contrary to 42 U.S.C. § 423(d)(5)(A).” Fair v. Bowen,
885 F.3d 597, 603 (9th Cir. 1989). By the same token, a
reviewing court is not required to credit claimants’
allegations regarding the extent of their impairments as true
merely because the ALJ made a legal error in discrediting
their testimony. “The Disability Insurance and Supplemental
Security Income programs are intended to provide benefits to
people who are unable to work; awarding benefits in cases of
nondisabling pain would expand the class of recipients far
beyond that contemplated by the statute.” Id. Accordingly,
only where “there are no outstanding issues that must be
 TREICHLER V. COMM’R OF SOC. SEC. 29

resolved before a determination of disability can be made,”
do we have discretion to credit a claimant’s testimony as true
and remand for benefits, and only then where “it is clear from
the record that the ALJ would be required to find [the
claimant] disabled” were such evidence credited. Moisa,
367 F.3d at 887. While we have recognized the impact that
delays in the award of benefits may have on claimants, such
costs are a byproduct of the agency process, and do not
“obscure the more general rule that the decision of whether to
remand for further proceedings turns upon the likely utility of
such proceedings.” Harman, 211 F.3d at 1179.

Treichler’s reliance on Benecke v. Barnhart and Vasquez
v. Astrue to support his argument is misplaced. In Benecke,
we held that the ALJ erred in ruling that the claimant was not
credible regarding “the extent of her impairments,” 379 F.3d
587, 593 (9th Cir. 2004), where “the record including the
limited vocational expert testimony, clearly establishes that
[the claimant] cannot perform a sedentary job or any other
substantial gainful work that exists in the national economy,”
id. at 595; see also id. (noting that “in the unusual case in
which it is clear from the record that the claimant is unable to
perform gainful employment in the national economy . . .
remand for an immediate award of benefits is appropriate”
(emphasis added)).8 As we have explained, in this case the

8
In reaching this conclusion, Benecke did not expressly analyze the
statements of the non-treating and non-examining physicians who
indicated that the claimant had seriously impaired functioning due to a
psychological disorder (somatization disorder) rather than fibromyalgia.
379 F.3d at 592. Recognizing that the opinions of non-treating and non-
examining physicians do not, by themselves, “constitute substantial
evidence that justifies the rejection of the opinion” of a treating doctor,
Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995), Benecke implicitly held
that the conclusions of the non-treating and non-examining physicians did
30 TREICHLER V. COMM’R OF SOC. SEC.

district court could reasonably determine, based on the
inconsistencies between Treichler’s testimony and the
medical reports, that it is not clear from the record that
Treichler is disabled. Vasquez is even less helpful to
Treichler. In that case, the ALJ erred in failing to make
specific findings in discrediting the claimant’s testimony.
572 F.3d at 592. We confirmed that Varney II allowed a
remand for benefits only in “cases ‘where there are no
outstanding issues that must be resolved before a proper
disability determination can be made, and where it is clear
from the administrative record that the ALJ would be
required to award benefits if the claimant’s excess pain
testimony were credited,’” and held that in Vasquez, there
were “outstanding issues that must be resolved before a
proper disability determination can be made.” Id. at 593
(quoting Varney II, 859 F.2d at 1401). Accordingly, we
remanded for further proceedings, not an award of benefits.
Id. at 594.9

not create a factual issue that required resolution by the agency where the
rheumatologists who treated the claimant (and whose views were entitled
to more weight) unanimously concluded she suffered from fibromyalgia,
see Benecke, 379 F.3d at 594 & n.4 (“Each rheumatologist’s opinion is
given greater weight than those of the other physicians because it is an
‘opinion of a specialist about medical issues related to his or her area of
specialty.’” (citing 20 C.F.R. § 404.1527(d)(5)). By contrast, Treichler’s
testimony is contradicted by information in the reports of his treating
physicians.
9
Vasquez determined that the claimant was credible in light of various
equitable considerations, 572 F.3d at 593–94, but this finding did not
constitute an application of the Varney rule, because Vasquez remanded
the case for a resolution of outstanding administrative issues, while
Varney II remanded for an award of benefits. We decline to apply
Vasquez here, in light of the different factual context and the general rule
that the Commissioner has the authority to make factual findings.
 TREICHLER V. COMM’R OF SOC. SEC. 31

Because further administrative proceedings are necessary,
Treichler has failed to satisfy the second step of the Varney
rule. Accordingly, we do not reach the third step of the rule,
which arises where the record is fully developed and free
from conflicts, making it clear that the ALJ would be required
to find the claimant disabled if he credited the claimant’s
testimony as true. Indeed, after a comprehensive review of
the record, we conclude that this case raises “serious doubt as
to whether the claimant is, in fact, disabled within the
meaning of the Social Security Act,” Garrison, 759 F.3d at
1021, and so a remand for further proceedings is warranted in
any event in an exercise of discretion.

Because these circumstances do not justify a departure
from the ordinary remand rule, the district court must
“remand to the agency for additional investigation or
explanation.” Lorion, 470 U.S. at 744.

V

In sum, because the ALJ erred in failing to provide
specific reasons for rejecting Treichler’s testimony regarding
the severity of his symptoms, we must reverse the judgment
of the district court affirming that portion of the ALJ’s
decision. But because the record does not compel a finding
of disability, we remand Treichler’s disability application to
the district court to remand to the agency for further
proceedings.10

AFFIRMED in part, REVERSED in part, and
REMANDED for further proceedings.

10
Each party shall bear its own costs on appeal.
32 TREICHLER V. COMM’R OF SOC. SEC.

TASHIMA, Circuit Judge, concurring in part and dissenting
in part:

I agree with the majority that the ALJ erred in discrediting
Treichler’s medically determinable pain and symptom
testimony based on a boilerplate credibility determination. I
part company, however, with the majority’s remand for
further proceedings. I would, instead, remand for the award
of benefits. I, therefore, dissent from Part IV of the majority
opinion.

I.

Under the credit-as-true rule, a reviewing court may
“credit evidence that was rejected during the administrative
process and remand for an immediate award of benefits if:
(1) the ALJ failed to provide legally sufficient reasons for
rejecting the evidence; (2) there are no outstanding issues that
must be resolved before a determination of disability can be
made; and (3) it is clear from the record that the ALJ would
be required to find the claimant disabled were such evidence
credited.” Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir.
2004). Under our precedent, we must remand for an award of
benefits if these three factors are met, unless the record
discloses that there is “serious doubt” that the claimant is
actually disabled. Garrison v. Colvin, 759 F.3d 995, 1023
(9th Cir. 2014). Here, each of these factors is satisfied and
there is no serious doubt that Treichler is actually disabled.1

1
Treichler worked as a tree trimmer and fell 50 feet from a tree. He
suffered massive injuries, including numerous fractures and internal
injuries.
 TREICHLER V. COMM’R OF SOC. SEC. 33

First, the ALJ failed to provide “legally sufficient
reasons” for rejecting Treichler’s pain and symptom
testimony. Id. at 1022. As the majority holds, the ALJ
committed legal error in rejecting Treichler’s testimony based
on boilerplate. Maj. Op. at 22–23.

Second, there are “no outstanding issues that must be
resolved before a determination of disability can be made.”
Garrison, 759 F.3d at 1019 (quoting Varney v. Sec’y of
Health & Human Servs., 859 F.2d 1396, 1401 (9th Cir. 1988)
(internal quotation marks omitted)). We have remanded for
additional proceedings when “critical portions of [a treating
physician’s] testimony . . . were not before the ALJ at all but
were presented only to the Appeals Council,” Harman v.
Apfel, 211 F.3d 1172, 1180 (9th Cir. 2000), or when “no
vocational expert has been called upon to consider all of the
testimony that is relevant to the case,” Bunnell v. Barnhart,
336 F.3d 1112, 1116 (9th Cir. 2003). Such considerations are
absent here, where the vocational expert considered all of the
relevant testimony, and where no critical evidence was
submitted to the Appeals Council. No outstanding issues
must be resolved on remand before a disability determination
can be made.

Third, “it is clear from the record that the ALJ would be
required to find [Treichler] disabled were [his testimony]
credited.” Benecke, 379 F.3d at 593. Treichler testified that
he suffers from urinary incontinence up to three times a week,
fecal incontinence once or twice a month, catheter use up to
four times a day for twenty minutes a time, and incapacitating
pain twice a week. Dispositively, the vocational expert
testified that each of these conditions, independently,
prevents Treichler from performing substantial gainful
activity. The vocational expert also testified that disabling
34 TREICHLER V. COMM’R OF SOC. SEC.

pain one-fourth as severe as Treichler’s would render
Treichler unemployable. Thus, “the vocational expert’s
testimony establishes that taking [Treichler’s] testimony as
true, he was disabled.” Lingenfelter v. Astrue, 504 F.3d 1028,
1041 (9th Cir. 2007).

“[Treichler] satisfies all three conditions of the credit-as-
true rule and . . . a careful review of the record discloses no
reason to seriously doubt that [he] is, in fact, disabled. A
remand for a calculation and award of benefits is therefore
required under our credit-as-true precedents.” Garrison,
759 F.3d at 1023.

II.

The majority, however, concludes that we should not
remand for the award of benefits because some evidence in
the record contradicts Treichler’s testimony. Maj. Op. at 31.
I am unpersuaded.

Application of the credit-as-true rule does not depend on
the absence of contradictory evidence in the record. Instead,
once the credit-as-true rule’s three-part test is satisfied, as it
has been here, we must remand for the award of benefits
unless “the record as a whole creates serious doubt that a
claimant is, in fact, disabled.” Garrison, 759 F.3d at 1021
(emphasis added). The mere existence of some contradictory
evidence is insufficient: only if that evidence is extensive
and compelling does the credit-as-true rule permit us to
remand for further proceedings. Id. Here, the record as a
whole leaves little doubt that Treichler is disabled. On the
contrary, the record amply supports Treichler’s testimony.
Treichler’s description of his symptoms – urinary
incontinence, fecal incontinence, catheter use, and disabling
 TREICHLER V. COMM’R OF SOC. SEC. 35

pain – is corroborated by numerous opinions from treating
physicians and from other sources.

Medical records attest to the severity and continuity of
Treichler’s pain, even with medication. Treichler’s treating
physicians describe his pain as “considerable,” “significant,”
“[a]cute,” “chronic,” and “constant.” They diagnose his pain
as ongoing: Treichler “still has,” “continues to have,” and
will have “significant pain and discomfort” “for a very
prolonged period of time.” Medical opinions also confirm
that Treichler’s pain is not controlled well by medication: he
receives “very little pain relief” from his medication, and “is
not very active because [medication] does not take all of his
pain away,” leaving him only “somewhat functional.”
According to other sources, “some days [Treichler] doesn’t
seem like he can move at all.”

Treichler’s bladder incontinence, fecal incontinence, and
catheter use are similarly affirmed by medical evidence in the
record. Treating physicians and nurse practitioners diagnosed
Treichler with “leakage of urine,” “bladder incontinence . . .
2 times a week,” and “bladder problems.” Treating
specialists, physicians, and other sources described Treichler
as having “significant . . . problems with bowel function,” and
prescribed self-catheterization “4 times daily.” The majority
asserts that this evidence is wanting because it appears
alongside other portions of the record that downplay the
extent of Treichler’s disability. Maj. Op. at 25–26 & n.7.
But the mere fact that some evidence raises questions about
the severity of Treichler’s injuries does not cast doubt on the
record as a whole, as required by our precedents to justify a
remand. Cf. Garrison, 759 F.3d at 1021. I remain
36 TREICHLER V. COMM’R OF SOC. SEC.

unconvinced that any of the discrepancies cited by the
majority cast doubt sufficient to justify a remand.2

Although evidence from treating physicians and from
other sources amply supports Treichler’s testimony about his
disabling pain, bladder incontinence, bowel incontinence, and
catheter use, the majority concludes that Treichler’s pain
testimony, if credited, would not require the ALJ to award
him benefits. Maj. Op. at 28. I disagree.

III.

The majority remands for further proceedings to enable
the ALJ to make findings concerning conflicting evidence in
the record. See Maj. Op. at 31. But the fact “that there is
material in the record upon which the ALJ legitimately could
have rejected . . . testimony” does not justify remand for
further proceedings. Harman, 211 F.3d at 1178 (emphasis

2
The majority asserts that our review of Treichler’s disabilities need not
be searching because “we are considering whether the district court
abused its discretion in determining that there are outstanding issues in the
record that should be decided by the agency under the ordinary remand
rule.” Maj. Op. at 26–27. We have indicated in the past, however, that in
the social security context “the distinction [between de novo and abuse of
discretion review] often begins to blur.” Harman, 211 F.3d at 1176.
Moreover, in Harman, after articulating the abuse of discretion standard,
we applied the credit-as-true rule and, in so doing, closely examined the
record to see “whether it was clear from the record that the ALJ would be
required to find the claimant disabled were [the claimant’s] evidence
credited.” Id. at 1178–80 (quoting Smolen v. Chater, 80 F.3d 1273, 1929
(9th Cir. 1996)). The overarching abuse of discretion standard did not
prevent us from giving the plaintiff’s materials “the consideration to which
they are entitled.” Id. at 1180; see also Benecke, 379 F.3d at 593–96.
Accordingly, the abuse of discretion standard should not prevent us from
fully applying the credit-as-true rule to Treichler’s case.
 TREICHLER V. COMM’R OF SOC. SEC. 37

added). The credit-as-true rule does not consider “whether
the ALJ might have articulated a justification for rejecting”
claimant testimony. Id. at 1179. When the credit-as-true
rule’s criteria are met, “remand for determination and
payment of benefits is warranted regardless of whether the
ALJ might have articulated a justification for rejecting” a
claimant’s testimony. Id.

The majority attempts to justify its remand for further
proceedings by contending that the second element of the
credit-as-true rule is unmet here. Maj. Op. at 31. The
majority is mistaken. Under the second element of the credit-
as-true rule, we consider whether the “record is fully
developed” before the ALJ. McCartey v. Massanari,
298 F.3d 1072, 1077 (9th Cir. 2002); Moore v. Comm’r of
Soc. Sec. Admin., 278 F.3d 920, 926 (9th Cir. 2002); Smolen,
80 F.3d at 1292. This means we consider whether the “claim
of disability has been developed by an evidentiary hearing
and numerous medical reports.” Vertigan v. Halter, 260 F.3d
1044, 1053 (9th Cir. 2001). We may find the rule’s second
element unmet only when the record is not sufficiently
developed, for example when “critical portions of [a treating
physician’s] testimony . . . were not before the ALJ at all but
were presented only to the Appeals Council,” Harman,
211 F.3d at 1180; when “additional assumptions should have
been incorporated into the ALJ’s hypothetical,” Hill v.
Astrue, 698 F.3d 1153, 1162 (9th Cir. 2012); or when “no
vocational expert has been called upon to consider all of the
testimony that is relevant to the case,” Bunnell, 336 F.3d at
1116. Here, the second element is clearly met. The record
before the ALJ included all the critical evidence, and the
vocational expert was asked to consider all the testimony
relevant to the case. The inquiry under the second element of
the credit-as-true rule should end there.
38 TREICHLER V. COMM’R OF SOC. SEC.

The majority, instead, holds that the second element of
the credit-as-true rule is unmet where the record does not
unquestionably establish that a claimant’s testimony is true.
See Maj. Op. at 28. This is improper. Fundamentally, the
credit-as-true rule asks whether “taking the claimant’s
testimony as true, the ALJ would clearly be required to award
benefits.” Lingenfelter, 504 F.3d at 1041 (emphasis added).
It does not ask, as the majority does, whether the claimant’s
testimony is clearly established as true by the record.

The majority points to Nguyen v. Chater, 100 F.3d 1462
(9th Cir. 1996), as an example of a case where we remanded
to the ALJ for further proceedings after finding legal error.
Maj. Op. at 27. The claimant’s case in Nguyen, however, was
based primarily on the reports of doctors; the claimant’s
testimony by itself was insufficient to establish that he was
disabled. See Nguyen, 100 F.3d at 1464–67. The court thus
made no mention of the credit-as-true rule because it was not
relevant. In this case, by contrast, Treichler’s testimony by
itself would, if credited, entitle him to benefits.

The majority’s dismissal of Benecke is similarly flawed.
According to the majority, the claimant’s analogy to Benecke
is inapposite because Benecke was an “unusual case” where
the record clearly established the defendant was unable to
perform any substantial gainful work existing in the national
economy. Maj. Op. at 29–30. However, much like the case
at hand, non-examining physicians offered testimony in
Benecke suggesting the claimant was not disabled. Benecke,
379 F.3d at 592–93. The Benecke court applied the credit-as-
true rule in spite of this evidence because the full record left
 TREICHLER V. COMM’R OF SOC. SEC. 39

no serious doubt the claimant was disabled. See id. at 595.3
We should do the same.

The majority also contravenes the spirit and purpose of
the credit-as-true rule to “ensure that pain testimony [is]
carefully assessed” so “that credible claimants’ testimony is
accepted the first time around.” Varney, 859 F.2d at 1398.
It springs from a recognition of the extreme costs –
“financial, medical, and emotional” – of an ALJ’s failure
carefully to assess a claimant’s testimony in the initial
proceeding. Id. at 1399. Remanding for further proceedings
even when the credit-as-true rule is met, as the majority does,
ignores these values and permits the Commissioner to
administer “an unfair ‘heads we win; tails, let’s play again’
system of disability benefits adjudication.” Benecke, 379 F.3d
at 595.4

3
According to the majority, there was no substantive evidence
contradicting the claimant’s disability claim because the court “implicitly
held that the conclusions of the non-treating and non-examining
physicians did not create a factual issue that required resolution by the
agency.” Maj. Op. at 29–30 n.8. Though we did note in Benecke that the
opinions of non-treating physicians should be given “less weight,” we
never stated that such opinions received no weight. Benecke, 379 F.3d at
592. Contrary to the majority’s assertion, our application of the credit-as-
true rule in Benecke came only after we acknowledged the limited
evidence weighing against the claimant’s disability claim. See id. at
593–94.
4
The credit-as-true rule is aimed at mitigating the terrible costs
claimants must endure after erroneous credibility assessments by
encouraging the ALJ to weigh such testimony carefully. Varney, 859 F.2d
at 1398. The fact that such a scheme may penalize the Commissioner in
litigation is merely a byproduct of its true purpose. The majority’s
suggestion that the rule is principally concerned with judicial efficiency
thus is incorrect. See Maj. Op. at 29. Though in Harman we did articulate
a general concern that remands should occur when further proceedings are
40 TREICHLER V. COMM’R OF SOC. SEC.

“The Commissioner, having lost this appeal, should not
have another opportunity to show that [Treichler] is not
credible any more than [Treichler], had he lost, should have
an opportunity for remand and further proceedings to
establish his credibility.” Moisa v. Barnhart, 367 F.3d 882,
887 (9th Cir. 2004). But the majority gives the
Commissioner precisely that second bite at the apple and
makes a shambles of the credit-as-true rule.

Because I would remand for the calculation and award of
benefits, I respectfully dissent from the majority’s remand for
further proceedings.

likely to be useful, we specifically noted a “limited exception” to that
principle when the credit-as-true rule’s requirements are met. Harman,
211 F.3d at 1179.