Vivian Trevizo v. Nancy Berryhill

Filing

Filed order and amended opinion (SIDNEY R. THOMAS, KIM MCLANE WARDLAW and BRIAN M. MORRIS). Amending Disposition Opinion REVERSED AND REMANDED;The opinion filed on July 10, 2017 is amended, and an amended opinion is filed. With these amendments, we deny Defendant-Appellee s petition for panel rehearing. No future petitions for rehearing or petitions for rehearing en banc will be entertained. The mandate shall issue forthwith. IT IS SO ORDERED. [10580488]

Case: 15-16277, 09/14/2017, ID: 10580488, DktEntry: 41, Page 1 of 35

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VIVIAN R. TREVIZO,
Plaintiff-Appellant,
v.
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.

No. 15-16277
D.C. No.
2:14-cv-00616SRB
ORDER AND
AMENDED
OPINION

Appeal from the United States District Court
for the District of Arizona
Susan R. Bolton, District Judge, Presiding
Argued and Submitted May 16, 2017
San Francisco, California
Filed July 10, 2017
Amended September 14, 2017
Before: Sidney R. Thomas, Chief Judge, Kim McLane
Wardlaw, Circuit Judge, and Brian M. Morris,*
District Judge.
Order;
Opinion by Judge Wardlaw
*

The Honorable Brian M. Morris, United States District Judge for the
District of Montana, sitting by designation.

Case: 15-16277, 09/14/2017, ID: 10580488, DktEntry: 41, Page 2 of 35

2

TREVIZO V. BERRYHILL
SUMMARY**

Social Security
The panel reversed the district court’s order affirming the
denial of disability benefits by the Commissioner of the
Social Security Administration, and remanded with
instructions to remand to the administrative law judge
(“ALJ”) for the calculation and award of benefits.
The panel held that the ALJ did not follow the appropriate
methodology for weighting a treating physician’s opinion,
and there was no legitimate stated reason for rejecting the
treating physician’s opinion. The panel concluded that the
ALJ should have credited the treating physician’s opinion and
found that claimant was disabled. The panel further held that
the district court erred by developing its own reasons to
discount the treating physician’s opinion, rather than
reviewing the ALJ’s reasons for substantial evidence.
The panel held that the ALJ erred in discounting the
claimant’s testimony regarding her subjective symptoms.
The panel held that the vast majority of the ALJ’s bases for
rejecting claimant’s testimony were legally or factually
erroneous; and substantial evidence did not support a finding
that claimant’s symptoms were not as severe as she testified,
particularly in light of the extensive medical record
objectively verifying her claims.

**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

Case: 15-16277, 09/14/2017, ID: 10580488, DktEntry: 41, Page 3 of 35

TREVIZO V. BERRYHILL

3

The panel held that each of the “credit-as-true” factors
outlined in Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir.
2014), was satisfied, and therefore remand for the calculation
and award of benefits was warranted.

COUNSEL
Mark Caldwell (argued), Mark Caldwell P.C., Phoenix,
Arizona, for Plaintiff-Appellant.
Jeffrey E. Staples (argued) and Lisa Goldoftas, Assistant
Regional Counsel; Mathew W. Pile, Acting Regional Chief
Counsel, Seattle Region X; Elizabeth A. Strange, Acting
United States Attorney; Office of the General Counsel, Social
Security Administration, Seattle, Washington; for DefendantAppellee.

ORDER
The opinion filed on July 10, 2017 is amended, and an
amended opinion is filed. With these amendments, we deny
Defendant-Appellee’s petition for panel rehearing. No future
petitions for rehearing or petitions for rehearing en banc will
be entertained. The mandate shall issue forthwith.
IT IS SO ORDERED.

Case: 15-16277, 09/14/2017, ID: 10580488, DktEntry: 41, Page 4 of 35

4

TREVIZO V. BERRYHILL
OPINION

WARDLAW, Circuit Judge:
Vivian Trevizo (“Trevizo”), a 65-year-old woman last
employed as a security guard nine years ago, in 2008, appeals
the district court’s order affirming the denial of disability
benefits by the Commissioner of the Social Security
Administration. Trevizo argues that the administrative law
judge (“ALJ”) improperly rejected the medical opinion of her
treating physician and erroneously discounted her symptom
testimony. We reverse the judgment below with instructions
to remand to the ALJ for the calculation and award of
benefits.
I.
A. Procedural history.
Trevizo applied for disability benefits on April 8, 2010,
claiming a disability onset date of August 15, 2008. On June
24, 2010, Trevizo’s claim was denied. On reconsideration on
October 29, 2010, however, the agency found that Trevizo
met “the medical requirements for disability benefits” as of
September 16, 2010. Trevizo requested a hearing before an
ALJ to challenge the onset date in the partially favorable
decision. At the hearing, held on August 23, 2012, Trevizo
presented extensive medical records to support her claimed
impairments and testified at length about how those
impairments affect her daily activities and limit her ability to
perform work. The ALJ found that Trevizo was not disabled
and denied the claim in its entirety on September 27, 2012.
On January 28, 2014, the Appeals Council denied Trevizo’s
agency appeal, and Trevizo sought judicial review of the

Case: 15-16277, 09/14/2017, ID: 10580488, DktEntry: 41, Page 5 of 35

TREVIZO V. BERRYHILL

5

agency’s decision in the district court for the District of
Arizona. On May 13, 2015, the district court affirmed the
ALJ’s decision. Trevizo timely appealed.
B. Personal and medical history.
The administrative record and the evidence presented at
the hearing comprehensively address Trevizo’s physical
health and impairments. Trevizo suffers from uncontrolled
Type II diabetes, psoriasis, hypertension, high cholesterol,
chronic lumbago, invertebral disc degeneration, psoriatic
arthritis, and mild scoliosis. Since 2008 she has also
experienced migraines, Achilles tendinitis, heel and Achilles
bone spurs, vaginitis, urinary tract infections, pelvic
inflammatory disease, fatigue, weakness, and several bouts of
conjunctivitis. Her past surgeries include carpal tunnel
surgery on both wrists, a hysterectomy, gallbladder removal,
an appendectomy, partial intestinal surgery, and a
colonoscopy in which a large polyp was removed. In March
2012, Trevizo was admitted to the emergency department
complaining of chest pain, and she was released upon
treatment. Throughout this period Trevizo has been severely
or morbidly obese.
1. Treating providers.
Dr. Ravi Galhotra is Trevizo’s primary care physician.
The record reflects that Trevizo had at least 22 medical visits
with Dr. Galhotra between January 2008 and August 2012.
Trevizo has consulted Dr. Galhotra extensively for her
psoriasis and accompanying back and joint pain, as well as
for treatment of cold and sinus symptoms, ear infections,
conjunctivitis, migraines and headaches, weakness, fatigue,
yeast infections, urinary tract infections, chest pain, and other

Case: 15-16277, 09/14/2017, ID: 10580488, DktEntry: 41, Page 6 of 35

6

TREVIZO V. BERRYHILL

ailments. The first mention of a skin condition in Trevizo’s
medical records was on January 2, 2009, when she visited Dr.
Galhotra complaining of a rash. The doctor reported
“[m]ultiple skin abscesses on various parts of her body” in his
treatment notes. On January 20, 2009, Dr. Galhotra again
evaluated the rash, noting that Trevizo was not compliant
with her diabetes medication because she feared it was
causing the rash and related itching. By January 29, 2009, the
treatment notes reflect a “[r]ash throughout her body
particularly on the scalp” and contain the first explicit
mention of psoriasis. Trevizo visited Dr. Galhotra for flareups of her psoriasis over the next few years, while also
consulting with dermatologists. During this time, Trevizo
visited Dr. Galhotra regularly for pain as well. Dr. Galhotra’s
notes reflect that Trevizo complained of lower back pain as
early as May 1, 2008, and that at most of her subsequent
appointments she had lower back pain and pain in her other
joints, particularly her elbows and ankles. On November 6,
2009, Dr. Galhotra reported positive straight-leg raising tests
and the inability to stand on her toes and heels. The notes
reflect that Dr. Galhotra prescribed Vicodin and Tramadol
hydrochloride for Trevizo’s disc degeneration, and
consistently counseled her about weight loss, exercise, and
diet.
Dr. Galhotra completed a check-the-box medical
assessment of Trevizo’s ability to do work-related physical
activities. He wrote that she suffered from diabetes, disc
degeneration, hypertension, and psoriasis. Dr. Galhotra also
wrote that Trevizo could both occasionally and frequently lift
20 pounds; could stand and/or walk for less than two hours in
an eight-hour workday, which he noted was “b’cause [sic] of
back pain”; and could sit with normal breaks for up to three
hours per day. He further noted that her symptoms would

Case: 15-16277, 09/14/2017, ID: 10580488, DktEntry: 41, Page 7 of 35

TREVIZO V. BERRYHILL

7

require her to alternate sitting and standing four or five times
per eight-hour shift. He noted that she could never kneel or
crawl and could occasionally climb, stoop, balance, or
crouch. Dr. Galhotra concluded that, because of her carpal
tunnel surgery, Trevizo could only occasionally use her hands
for simple grasping, gross and fine manipulation, and
reaching. He cautioned that Trevizo should limit exposure to
heights, moving machinery, temperature extremes, and
chemicals. He did not provide additional comments to
explain his assessment.
Following Trevizo’s appointment with Dr. Galhotra
during which he first found “skin abscesses,” Trevizo
consulted Dr. Lisa Hynes, a dermatologist. Dr. Hynes tried
several treatments with Trevizo, none of which was
successful. At the first appointment on February 3, 2009,
Trevizo stated that she had experienced a rash for about one
month (a statement consistent with her January 2, 2009
appointment with Dr. Galhotra) and went to the emergency
department when the rash appeared. On February 9, 2009,
Dr. Hynes reported that the psoriasis had spread to 25 percent
of Trevizo’s body surface area (“BSA”). Dr. Hynes started
Trevizo on “systemic” treatment “[d]ue to extent of disease.”
At a February 23, 2009 appointment, the notes indicate “no
improvement” in the psoriasis, which “continue[d] to spread.”
March 23, 2009 was Trevizo’s final appointment with Dr.
Hynes; she reported some improvement but “still significant
breaking out” and nausea related to the medication. Dr.
Hynes noted that 35 percent of Trevizo’s BSA was covered
with psoriasis and started Trevizo on Humira injections.
After ending treatment with Dr. Hynes, Trevizo turned to
Dr. Lindsay Ackerman, who is her primary treating
dermatologist and who has been responsible for most of the

Case: 15-16277, 09/14/2017, ID: 10580488, DktEntry: 41, Page 8 of 35

8

TREVIZO V. BERRYHILL

care related to her psoriasis. Trevizo had at least 22 medical
visits with Dr. Ackerman between February 2010 and June
2012. Trevizo first visited Dr. Ackerman on February 23,
2010. Dr. Ackerman reported that Trevizo had developed
psoriasis “one year ago” and that to treat it Trevizo had taken
cyclosporine, which she discontinued for fear of exacerbating
her kidney disease, and Humira, which she took for six
months and discontinued upon losing her insurance. Dr.
Ackerman’s treatment notes reveal that Trevizo’s BSA
coverage ranged from 6 percent in February 2010 to a high of
nearly 90 percent following a severe flare-up in July 2010.
Dr. Ackerman tried numerous treatment options with
Trevizo—including topical treatments, cyclosporine, Humira,
Remicade, Enbrel, methotrexate, and Stelara—most of which
resulted in some initial improvement followed by an ultimate
failure of treatment. Dr. Ackerman eventually wrote that
Trevizo was “notable” for having failed so many different
treatments. Dr. Ackerman noted that Trevizo suffered from
regular flare-ups, joint pain, itchiness (and related difficulty
sleeping), foul smells from the plaques (requiring showering
three or four times daily), and fatigue.
On April 2, 2012, Dr. Ackerman wrote that Trevizo had
been hospitalized with severe elbow pain and that the
hospitalization “revealed . . . arthritis that was associated with
her psoriasis.” Trevizo was prescribed oxycodone, which she
did not take “as she was fearful of becoming narcotic
addicted. Instead she took hydroxyzine which she says kept
her pain under control.”
2. Examining physician.
Dr. Charles House is a psychologist who evaluated
Trevizo for the agency on September 16, 2010. He observed

Case: 15-16277, 09/14/2017, ID: 10580488, DktEntry: 41, Page 9 of 35

TREVIZO V. BERRYHILL

9

that she “presented as being an obese woman whose energy
level was low” and that she “tended to sit with her head
resting on her hand for much of the time.” He described her
social and language skills as “not very well developed” and
said she was “not very aware and was not very attentive.” He
described her as appearing to have “borderline intellectual
functioning.” During questioning by Dr. House, Trevizo did
not respond when asked who was president during the Civil
War; did not understand the question when asked what the
proverb “strike while the iron is hot” meant; incorrectly
added four plus nine; did not understand the question when
asked to count backwards from 70 by sevens; and could not
spell the word “world” backwards. Dr. House noted that he
skipped a task “as [he] was unable to get this woman to attend
to and follow directions.” Trevizo told Dr. House that “her
main problem was that her feet hurt” because of her psoriasis
and that her diabetes also made her “tired and moody.”
There was uncertainty about Trevizo’s educational
background during her evaluation with Dr. House. Trevizo
told Dr. House she was placed in a special education class in
high school without her mother’s knowledge; the
psychologist wrote, “This seems unlikely as the parents
would have had to have given consent to the school for her to
be evaluated, and would then have to give approval for the
child to take part in special ed.” Dr. House added, “I tried to
clarify the matter, but had difficulty doing so. . . . Perhaps she
was assigned to some sort of remedial class [for one] year.”
Dr. House also reported that Trevizo’s responses about her
reason for leaving her job were “confusing.” “She seemed to
indicate that she left that job because she was having
problems with psoriasis. . . . I initially heard her to say, ‘They
wanted to remove me from this job.’ She then seemed to
indicate that she was the one that wanted a different job

Case: 15-16277, 09/14/2017, ID: 10580488, DktEntry: 41, Page 10 of 35

10

TREVIZO V. BERRYHILL

because she was allegedly being harassed by truck drivers.
She seemed to indicate that she quit this job.”
In summary, Dr. House wrote that Trevizo “displayed
problems with attention and awareness,” “seem[ed] to have
some problems with insight,” and “lacked normal social
skills.” He said her “presentation was suggestive of
borderline intellectual functioning.”
3. Non-examining physicians.
Dr. Robert Quinones reviewed Trevizo’s records for the
agency and completed a Residual Functional Capacity
(“RFC”) assessment. He opined that Trevizo could
occasionally lift or carry 20 pounds, frequently lift or carry
10 pounds, stand or walk for six hours in an eight-hour
workday, sit for six hours in day, and push or pull an
unlimited amount. He concluded that Trevizo was not
disabled because, despite experiencing “some discomfort”
from her conditions, she was not “significantly restricted in
[her] ability to get about and perform ordinary daily
activities.”
After Trevizo sought reconsideration of the initial denial
of benefits, Dr. Jonathan Zuess completed an RFC assessment
for the agency. Dr. Zuess noted that the psoriasis had
worsened since Trevizo’s initial application; that Trevizo was
having increased difficulty walking, sitting, standing, and
being exposed to heat; and that she was suffering from
depression. Dr. Zuess declined further testing of Trevizo’s
intellectual functioning, despite Dr. House’s provisional
borderline intellectual functioning diagnosis, because
intellectual limitations were “already ruled out by her work
history and [activities of daily living].” After reviewing Dr.

Case: 15-16277, 09/14/2017, ID: 10580488, DktEntry: 41, Page 11 of 35

TREVIZO V. BERRYHILL

11

House’s evaluation, Dr. Zuess concluded that she “has the
basic mental functional capacities necessary to perform
simple work.” Dr. Zuess also opined that Trevizo could
perform only physically “light” work. Finally, Dr. Zuess
concluded Trevizo was disabled based on the combination of
her physical and mental limitations. Because there was no
evidence in the record of her intellectual limitations prior to
Dr. House’s examination, Dr. Zuess set the onset date as the
date of that evaluation, September 16, 2010.
4. Self-reporting and third-party evidence.
In an Exertional Daily Activities Questionnaire, Trevizo
reported that in an average day she would “[s]tay home,
clean, take my medications.” In response to a question about
how her symptoms interfered with a normal day, she wrote
that her psoriasis was “all over my body and very noticeable
has me itchy all day I’m scratching my body. My sores start
to bleed people look at me . . . . It causes me pain on my head
when sores open. Its [sic] all over my head and face. I get
very dizzy and have my diabetes and insulin shots.” She
added that she could walk “maybe . . . 30 min” with breaks.
Trevizo wrote that she was able to lift 15 pounds; that she did
“light house work” but could not be on her feet for more than
15 minutes because of pain from her sores and dizziness from
her diabetes; that her symptoms, including shortness of breath
and lightheadedness, caused her to struggle to complete
chores and leave them “halfway done”; that she got five hours
of sleep at most per night; that she required rest periods and
naps during the day; that she avoided the sun because it hurt
her sores; and that before her illness she could do chores.
Trevizo also filled out a Function Report. When asked to
describe a typical day from beginning to end, Trevizo wrote,

Case: 15-16277, 09/14/2017, ID: 10580488, DktEntry: 41, Page 12 of 35

12

TREVIZO V. BERRYHILL

“I get me and my kids ready for the day. Every thing I do;
never gets finished; because I get really exausted [sic].” She
reported that her childcare responsibilities required feeding
and bathing the children. She repeatedly described her daily
chores as never being completed because of fatigue.
In a Work History Report, Trevizo said that as a security
guard her job was to “[j]ust sit in my car and make sure no
one was on the site” and that she would walk, stand, and sit
“off and on for 8 hours.” She used her hands for holding a
notebook and writing reports. The security guard job “did not
require[] any lifting at all.”
Trevizo’s granddaughter Virginia Trevizo (“Virginia”)
filled out a Third-Party Function Report. Virginia wrote that
she spent “day and night” with Trevizo, “help[ing] her alot
[sic].” Virginia reported that her grandmother’s tasks did not
get completed without her help; that her family would “watch
the kids for [Trevizo] when she is sick”; that before her
illness Trevizo was able to dance, run, play sports, and
decorate; that because of her illness Trevizo did not “get sleep
at all”; that Trevizo’s primary chores, cleaning and laundry,
“never [got] finished” because of her illness; and that Trevizo
did not do house or yard work because “she will probably be
[exhausted] or sick.”
C. ALJ hearing.
At the hearing before the ALJ, Trevizo testified that she
left her job as a security guard in 2008 because she “started
breaking out” and her diabetes was uncontrolled despite
taking insulin. She testified that she had previously worked
as a cashier but was unable to continue after she received
carpal tunnel surgery and that she experienced “tingling” in

Case: 15-16277, 09/14/2017, ID: 10580488, DktEntry: 41, Page 13 of 35

TREVIZO V. BERRYHILL

13

her hands when she used them to pick up items and do
chores. When asked why she was unable to work, Trevizo
responded, “Because of the itchiness and I get a lot of muscle
spasm in my legs. And it just burns . . . .” She explained that
the treatments for her psoriasis were not working, including
Dr. Ackerman’s latest treatment, Stelara. Trevizo reported
that when she was doing household chores she periodically
experienced difficulty concentrating because of pain and
itchiness and that her husband would have to take over the
task so she could shower to relieve her symptoms. She
testified that she showered at least three times per day to
address the itching and the odor caused by her psoriasis
plaques. Trevizo explained that she had to wear loose-fitting
clothing to be comfortable during flare-ups. When asked
about limitations on sitting, Trevizo said, “[R]ight now,
because I don’t have my sore on my buttocks, I could sit for
a while then I go and take me a shower because of the itches.”
She said that her hands periodically got tingly and numb and
that she got headaches, which she initially attributed to her
blood pressure before clarifying, “I don’t know why I get
these headaches.” She attributed several issues to her
diabetes, stating that her doctor had told her that diabetes
caused her “muscle spasms” and made her tired and dizzy.
She said that when she had worked as a security guard she
had “run[] around the buildings” but now could neither run at
all nor walk a mile.
Trevizo testified that her 18-year-old grandson helped her
with housework and that she lived with her husband,
grandson, and two adopted children, a 7 year old (fostered in
2005 and adopted in 2010) and a 3 year old (fostered in or
before 2009 and adopted in 2011). She agreed that her doctor
had provided a note verifying that she was medically able to
care for the children, although the record is unclear as to

Case: 15-16277, 09/14/2017, ID: 10580488, DktEntry: 41, Page 14 of 35

14

TREVIZO V. BERRYHILL

when that note was provided. Trevizo explained that she was
presently fostering a 2 year old, who had been in her home
for a year, and had fostered other young children in the past.
She testified that when she received notices from the foster
care review board, she would call into those hearings or
sometimes attend in person. She had also gone to the
dependency court and severance hearings for the children she
had adopted and met with their caseworkers. When asked
what “kind of care” the 2-year-old foster child required,
Trevizo responded, “He’s normal, he doesn’t have no
problems” and said that he did not go to “counsel.” She
testified that the adopted children also had no special needs.
The vocational expert (“VE”) addressed hypotheticals put
to her by the ALJ. The ALJ asked about a hypothetical
claimant who could occasionally lift or carry 50 pounds,
frequently lift 25 pounds, sit for six to eight hours in an eighthour workday, stand or walk for six to eight hours, and
frequently use her hands for fine and gross manipulation.
The VE testified that such a claimant would be able to work
as a security guard or a foster parent. The ALJ posed further
hypotheticals, including about a claimant who could
occasionally lift or carry 20 pounds, frequently lift or carry
10 pounds, sit for six to eight hours, stand or walk for six to
eight hours, and frequently use her hands for fine and gross
manipulation (who the VE testified could work as a security
guard); a similar claimant who could stand or walk less than
two hours (who the VE testified could do only sedentary
work); and a claimant who required up to three breaks per
day to shower (who the VE testified could not do any work).
Finally, the ALJ described a claimant with the limitations
outlined in Dr. Galhotra’s opinion, and the VE testified that
there was no available work for such a claimant because the

Case: 15-16277, 09/14/2017, ID: 10580488, DktEntry: 41, Page 15 of 35

TREVIZO V. BERRYHILL

15

total work time permitted by the claimant’s limitations was
less than full time.
D. ALJ decision.
The ALJ followed the five-step sequential evaluation
process for determining whether an individual is disabled. At
the first step, she found Trevizo was not engaged in
“substantial gainful activity,” which would disqualify her
from receiving benefits. At the second step, the ALJ
concluded that Trevizo’s diabetes and “psoriasis
arthropathy”1 constituted severe impairments, and that
Trevizo’s hypertension, obesity, high cholesterol, migraines,
colon polyp, diverticulitis, lumbago, ankle pain, and
intellectual impairment were nonsevere. At step three, the
ALJ found that Trevizo did not have an impairment or
combination of impairments that met or medically equaled
the severity of one of the listed impairments in 20 C.F.R. Part
404, Subpart P, Appendix 1.
Between steps three and four, the ALJ found Trevizo had
the RFC to perform medium work, meaning that she could
occasionally lift or carry 50 pounds, frequently lift or carry
25 pounds, sit for six to eight hours per eight-hour workday,
stand or walk for six to eight hours, and frequently use her
upper extremities for fine and gross manipulation. See
20 C.F.R. § 404.1567(c). The ALJ found that Trevizo’s

1

The ALJ referred to Trevizo’s “psoriasis arthropathy” as one of two
severe impairments, but that section of the ALJ’s decision is about
psoriasis. The ALJ did not distinguish psoriasis—a skin condition
resulting in red, patchy plaques—from psoriatic arthritis or arthropathy,
an arthritis associated with psoriasis that causes joint pain, stiffness, and
swelling. Trevizo has both disorders.

Case: 15-16277, 09/14/2017, ID: 10580488, DktEntry: 41, Page 16 of 35

16

TREVIZO V. BERRYHILL

claims about the severity of her diabetes and arthritis were
not supported by the medical treatment notes and that her
statements were inconsistent. The ALJ rejected the medical
opinions of treating physician Dr. Galhotra and nonexamining physician Dr. Zuess; she gave “some weight” to
the opinion of non-examining physician Dr. Quinones,
though she discounted it because she thought it unlikely that
Dr. Quinones was aware of Trevizo’s childcare activities; and
she gave “significant weight” to the opinion of examining
physician Dr. House and his conclusion that Trevizo “showed
signs of borderline intellectual functioning” but not anxiety
or depression. At step four, the ALJ determined that Trevizo
was able to perform her past relevant work as a security
guard. As a result, the ALJ concluded that Trevizo had not
been under a disability between August 15, 2008 and the date
of the decision. Accordingly, the ALJ denied benefits.
II.
We review de novo a district court’s order affirming a
denial of Social Security benefits by the Commissioner.
Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015).
We set aside a denial of Social Security benefits only when
the ALJ decision is “based on legal error or not supported by
substantial evidence in the record.” Benton ex rel. Benton v.
Barnhart, 331 F.3d 1030, 1035 (9th Cir. 2003). “Substantial
evidence means more than a mere scintilla, but less than a
preponderance. It means such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Desrosiers v. Sec’y of Health & Human Servs.,
846 F.2d 573, 576 (9th Cir. 1988) (citations omitted) (internal
quotation marks omitted). “Where evidence is susceptible to
more than one rational interpretation, the ALJ’s decision
should be upheld.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir.

Case: 15-16277, 09/14/2017, ID: 10580488, DktEntry: 41, Page 17 of 35

TREVIZO V. BERRYHILL

17

2007) (internal quotation marks omitted). Yet we “must
consider the entire record as a whole, weighing both the
evidence that supports and the evidence that detracts from the
Commissioner’s conclusion, and may not affirm simply by
isolating a specific quantum of supporting evidence.”
Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014)
(quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir.
2007)). “We review only the reasons provided by the ALJ in
the disability determination and may not affirm the ALJ on a
ground upon which he did not rely.” Id. at 1010; see also
SEC v. Chenery Corp., 318 U.S. 80, 87 (1943) (“The grounds
upon which an administrative order must be judged are those
upon which the record discloses that its action was based.”).
III.
The medical opinion of a claimant’s treating physician is
given “controlling weight” so long as it “is well-supported by
medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial
evidence in [the claimant’s] case record.” 20 C.F.R.
§ 404.1527(c)(2). When a treating physician’s opinion is not
controlling, it is weighted according to factors such as the
length of the treatment relationship and the frequency of
examination, the nature and extent of the treatment
relationship, supportability, consistency with the record, and
specialization of the physician. Id. § 404.1527(c)(2)–(6).
“To reject [the] uncontradicted opinion of a treating or
examining doctor, an ALJ must state clear and convincing
reasons that are supported by substantial evidence.” Ryan v.
Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008)
(alteration in original) (quoting Bayliss v. Barnhart, 427 F.3d
1211, 1216 (9th Cir. 2005)). “If a treating or examining

Case: 15-16277, 09/14/2017, ID: 10580488, DktEntry: 41, Page 18 of 35

18

TREVIZO V. BERRYHILL

doctor’s opinion is contradicted by another doctor’s opinion,
an ALJ may only reject it by providing specific and legitimate
reasons that are supported by substantial evidence.” Id.
(quoting Bayliss, 427 F.3d at 1216); see also Reddick v.
Chater, 157 F.3d 715, 725 (9th Cir. 1998) (“[The] reasons for
rejecting a treating doctor’s credible opinion on disability are
comparable to those required for rejecting a treating doctor’s
medical opinion.”). “The ALJ can meet this burden by
setting out a detailed and thorough summary of the facts and
conflicting clinical evidence, stating his interpretation
thereof, and making findings.” Magallanes v. Bowen,
881 F.2d 747, 751 (9th Cir. 1989) (quoting Cotton v. Bowen,
799 F.2d 1403, 1408 (9th Cir. 1986)).
As the ALJ noted, Dr. Galhotra is Trevizo’s “primary
treating physician,” having treated her at least 22 times
between 2008 and 2012. In her one-paragraph discussion of
Dr. Galhotra’s medical opinion, however, the ALJ afforded
“little weight” to his conclusion that Trevizo “could perform
less than the full range of sedentary work.” She deemed Dr.
Galhotra’s opinion inconsistent with Trevizo’s daily childcare
activities, “as well as his own treatment notes.” Specifically,
the ALJ stated that Dr. Galhotra must be incorrect in opining
that back pain would preclude Trevizo from sitting for more
than three hours per day and standing or walking for more
than two hours per day, because “the objective evidence only
shows mild thoracic degenerative disc disease with no
significant treatment for degenerative disc disease.” She
added that Dr. Galhotra’s opinion conflicted with Trevizo’s
testimony that she could walk half a mile at a time and went
to the grocery store once per week for an hour and a half.
The ALJ did not expressly find that Dr. Galhotra’s opinion
was contradicted by any of the other physicians, but we can
infer from the record that on at least two points Dr. Galhotra’s

Case: 15-16277, 09/14/2017, ID: 10580488, DktEntry: 41, Page 19 of 35

TREVIZO V. BERRYHILL

19

opinion was inconsistent with Dr. Quinones’—standing or
walking and sitting within an eight-hour workday.
Nevertheless, the ALJ’s outright rejection of Dr.
Galhotra’s opinion was legally erroneous. First, the ALJ
erred by failing to apply the appropriate factors in
determining the extent to which the opinion should be
credited. Though she suggested that Dr. Galhotra’s opinion
was “inconsistent with the other substantial evidence in
[Trevizo’s] case record,” such that it should not be given
dispositive weight, 20 C.F.R. § 404.1527(c)(2), the ALJ did
not consider factors such as the length of the treating
relationship, the frequency of examination, the nature and
extent of the treatment relationship, or the supportability of
the opinion, id. § 404.1527(c)(2)–(6). This failure alone
constitutes reversible legal error.
Moreover, the ALJ did not offer “specific and legitimate”
reasons for rejecting Dr. Galhotra’s opinion. Ryan, 528 F.3d
at 1198 (quoting Bayliss, 427 F.3d at 1216). Though the ALJ
repeatedly pointed to Trevizo’s responsibilities caring for her
young adoptive children as a reason for rejecting her
disability claim, the record provides no details as to what
Trevizo’s regular childcare activities involved. The ALJ did
not develop a record regarding the extent to which and the
frequency with which Trevizo picked up the children, played
with them, bathed them, ran after them, or did any other tasks
that might undermine her claimed limitations, nor did the
ALJ inquire into whether Trevizo cared for the children alone
or with the assistance of her grandchildren or other family
members. The only childcare responsibilities identified at the
hearing were one-off events, such as taking the children to the
doctor or attending hearings (often by phone). Absent
specific details about Trevizo’s childcare responsibilities,

Case: 15-16277, 09/14/2017, ID: 10580488, DktEntry: 41, Page 20 of 35

20

TREVIZO V. BERRYHILL

those tasks cannot constitute “substantial evidence”
inconsistent with Dr. Galhotra’s informed opinion, and thus
the ALJ improperly relied on Trevizo’s childcare activities to
reject the treating physician opinion.2 There is also no reason
that Dr. Galhotra’s opinion—that Trevizo can frequently lift
or carry 20 pounds, stand or walk for less than two hours per
eight-hour workday, and sit for no more than three hours per
workday—is contradicted by her self-reported ability to walk
for 30 minutes and go grocery shopping for an hour and a half
once per week. These limited activities are entirely
consistent with the medical opinion.
The ALJ’s conclusory determination that Dr. Galhotra’s
opinion was contradicted by his treatment notes and her
reliance on the mildness of Trevizo’s thoracic degenerative
disc disease3 as evidence of Trevizo’s capacity to do work are
inapposite. Far from “setting out a detailed and thorough
summary of the facts and conflicting clinical evidence, stating
[her] interpretation thereof, and making findings,”
Magallanes, 881 F.2d at 751 (quoting Cotton, 799 F.2d at

2

The ALJ did not rely on the fact that Trevizo had been licensed as
a foster parent as a basis for denying her claim, and we therefore cannot
consider Trevizo’s status as a licensed foster parent as a reason to affirm
the ALJ’s decision. See Garrison, 759 F.3d at 1009. Nonetheless, we
note that Trevizo went through the licensing process ten years prior to her
2012 ALJ hearing, well before the 2008 onset of her disability. In
addition, while Trevizo testified that she received a written opinion from
a doctor that she was able to care for her adoptive children, the record
does not indicate when that opinion was written and whether it was before
or after August 2008.
3

A diagnostic imaging service found “[m]ild scoliosis and thoracic
spine degenerative disc change.” It is unclear whether both the scoliosis
and the degenerative disc change were being described as mild or whether
the word “mild” was intended to refer only to the scoliosis.

Case: 15-16277, 09/14/2017, ID: 10580488, DktEntry: 41, Page 21 of 35

TREVIZO V. BERRYHILL

21

1408), the ALJ pointed to nothing in Dr. Galhotra’s treatment
notes or elsewhere in the clinical record that contradicted the
treating physician’s opinion.
In fact, Dr. Galhotra’s treatment notes reveal that Trevizo
complained of lower back pain during at least
16 appointments with him between May 2008 and August
2012, and he has repeatedly noted that she suffers from
chronic lumbago, making his assessment of her back pain and
her attendant physical limitations wholly consistent with his
treatment notes and course of treatment. Dr. Galhotra’s notes
reflect that he prescribed Trevizo both Vicodin and Tramadol
hydrochloride for her invertebral disc degeneration, and he
routinely counseled her about weight loss, exercise, and diet.
Though the ALJ identified the absence of more aggressive
interventions for Trevizo’s back pain (such as “an MRI,
steroid injections, block injections, recommendations for
surgery, or even a referral to an orthopedic surgeon”) as a
reason for considering the pain to be “non-severe,” she did
not rely on it as a basis for rejecting Dr. Galhotra’s opinion.
Moreover, the failure of a treating physician to recommend a
more aggressive course of treatment, absent more, is not a
legitimate reason to discount the physician’s subsequent
medical opinion about the extent of disability. Finally, other
doctors have diagnosed Trevizo with psoriatic arthritis, which
is a further basis for back and joint pain separate from
degenerative disc disease that is consistent with Dr.
Galhotra’s opinion.
The ALJ did not follow the appropriate methodology for
weighting a treating physician’s medical opinion, and there
is no legitimate stated reason for rejecting Dr. Galhotra’s
opinion. As such, we conclude that the ALJ erred by giving
the opinion “little weight” and instead should have found it to

Case: 15-16277, 09/14/2017, ID: 10580488, DktEntry: 41, Page 22 of 35

22

TREVIZO V. BERRYHILL

be controlling. Because the VE testified that a claimant with
the physical limitations outlined in Dr. Galhotra’s medical
opinion would be unable to do any full-time work, Dr.
Galhotra’s opinion “alone establishes that [Trevizo] is
entitled to benefits.” Lingenfelter, 504 F.3d at 1041 n.12.
The ALJ should have credited Dr. Galhotra’s opinion and
found that Trevizo was disabled, and the district court erred
by developing its own reasons to discount Dr. Galhotra’s
opinion, rather than reviewing the ALJ’s reasons for
substantial evidence.4

4

The district court considered Dr. Galhotra to be a contradicted
treating physician, because his medical opinion conflicted with
nonexamining physician Dr. Quinones’ opinion that Trevizo could
“perform light work with some limitations.” The district court also
criticized Dr. Galhotra’s opinion as a “check-the-box form in which Dr.
Galhotra cited no medical evidence for the restrictions he assessed.”
Finally, the district court noted the “normal physical exams of [Trevizo’s]
back and joints” in Dr. Galhotra’s records as a basis for finding his
opinion was inconsistent with his treatment notes. First, we rely only on
the ALJ’s stated bases for rejecting Trevizo’s disability claims. See
Garrison, 759 F.3d at 1009. Because the ALJ did not provide these
explanations herself as a reason to reject Dr. Galhotra’s opinion, the
district court erred in looking to the remainder of the record to support the
ALJ’s decision, and we cannot affirm on those grounds. Moreover, the
ALJ was not entitled to reject the responses of a treating physician without
specific and legitimate reasons for doing so, even where those responses
were provided on a “check-the-box” form, were not accompanied by
comments, and did not indicate to the ALJ the basis for the physician’s
answers. See Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996).
Finally, there is no authority that a “check-the-box” form is any less
reliable than any other type of form; indeed, agency physicians routinely
use these types of forms to assess the intensity, persistence, or limiting
effects of impairments.

Case: 15-16277, 09/14/2017, ID: 10580488, DktEntry: 41, Page 23 of 35

TREVIZO V. BERRYHILL

23

IV.
We have established a two-step analysis for determining
the extent to which a claimant’s symptom testimony must be
credited:
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. In this
analysis, the claimant is not required to show
that her impairment could reasonably be
expected to cause the severity of the symptom
she has alleged; she need only show that it
could reasonably have caused some degree of
the symptom. Nor must a claimant produce
objective medical evidence of the pain or
fatigue itself, or the severity thereof.
If the claimant satisfies the first step of this
analysis, and there is no evidence of
malingering, the ALJ can reject the claimant’s
testimony about the severity of her symptoms
only by offering specific, clear and
convincing reasons for doing so. This is not
an easy requirement to meet: The clear and
convincing standard is the most demanding
required in Social Security cases.

Case: 15-16277, 09/14/2017, ID: 10580488, DktEntry: 41, Page 24 of 35

24

TREVIZO V. BERRYHILL

Garrison, 759 F.3d at 1014–15 (citations omitted) (internal
quotation marks omitted).5 The ALJ recited boilerplate
language confirming that Trevizo had met the first prong of
this test but failed at the second, and made no finding of
malingering: “After careful consideration of the evidence,
the undersigned finds that the claimant’s medically
determinable impairments could reasonably be expected to
cause the alleged symptoms; however, the claimant’s
statements concerning the intensity, persistence and limiting
effects of these symptoms are not credible to the extent they
are inconsistent with the above residual functional capacity
assessment.”6 To make the latter finding, the ALJ was
5

At the time of the ALJ’s decision, there was a Social Security
Ruling (“SSR”) that “clarif[ied] when the evaluation of symptoms,
including pain, . . . requires a finding about the credibility of an
individual’s statements about pain or other symptom(s) and its functional
effects; . . . explain[ed] the factors to be considered in assessing the
credibility of the individual’s statements about symptoms; and . . . state[d]
the importance of explaining the reasons for the finding about the
credibility of the individual’s statements in the disability determination or
decision.” SSR 96-7p (1996). In March 2016, that ruling was superseded
to “eliminat[e] the use of the term ‘credibility’ from our sub-regulatory
policy, as our regulations do not use this term” and to “clarify that
subjective symptom evaluation is not an examination of an individual’s
character” but instead was meant to be consistent with “our regulatory
language regarding symptom evaluation.” SSR 16-3p (2016). This ruling
makes clear what our precedent already required: that assessments of an
individual’s testimony by an ALJ are designed to “evaluate the intensity
and persistence of symptoms after [the ALJ] find[s] that the individual has
a medically determinable impairment(s) that could reasonably be expected
to produce those symptoms,” and not to delve into wide-ranging scrutiny
of the claimant’s character and apparent truthfulness. Id.
6

“ALJs routinely include this statement in their written findings as an
introduction to the ALJ’s credibility determination” before “identify[ing]
what parts of the claimant’s testimony were not credible and why.”
Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1103 (9th Cir.

Case: 15-16277, 09/14/2017, ID: 10580488, DktEntry: 41, Page 25 of 35

TREVIZO V. BERRYHILL

25

required to provide specific, clear, and convincing reasons to
discount the alleged severity of Trevizo’s subjective
symptoms and pain. See Lingenfelter, 504 F.3d at 1036. We
find that the ALJ committed further error in discounting
Trevizo’s testimony regarding her subjective symptoms.
A. Severity of psoriasis, back and joint pain, and weakness.
The ALJ erred in finding that Trevizo’s psoriasis and pain
were “not as severe as alleged.” The medical record
demonstrates that Trevizo’s psoriasis is severe, covering a
substantial percentage of her BSA and failing to respond to
myriad aggressive treatments. The reasons the ALJ gave for
doubting Trevizo’s statements regarding her psoriasis are not
“clear and convincing.”
The ALJ discredited Trevizo’s claim that she was unable
to walk for long distances given the psoriatic plaques on her
feet because “treatment notes consistently state that her feet
appeared normal.” This is incorrect. After five of Trevizo’s
medical visits with Dr. Galhotra (out of 22 in the record), his
notes state, “The feet showed a normal appearance” and “No
ulcer was seen on the feet.” “Occasional symptom-free
periods . . . are not inconsistent with disability,” Lester v.
Chater, 81 F.3d 821, 833 (9th Cir. 1995), and an ALJ “may

2014). The use of this generic language is not itself reversible error, see
id., but it inverts the responsibility of an ALJ, which is first to determine
the medical impairments of a claimant based on the record and the
claimant’s credible symptom testimony and only then to determine the
claimant’s RFC. By rejecting a claimant’s subjective symptoms “to the
extent they are inconsistent with the above residual functional capacity
assessment,” the agency indicates that it is failing properly to incorporate
a claimant’s testimony regarding subjective symptoms and pain into the
RFC finding, as it is required to do.

Case: 15-16277, 09/14/2017, ID: 10580488, DktEntry: 41, Page 26 of 35

26

TREVIZO V. BERRYHILL

not disregard [a claimant’s testimony] solely because it is not
substantiated affirmatively by objective medical evidence,”
Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir.
2006). It does not discredit Trevizo’s symptom testimony if
her feet were not invariably covered in sores, particularly in
light of treatment notes showing that up to 90 percent of
Trevizo’s BSA was covered in psoriatic plaques at various
points in her treatment.7 Where Dr. Galhotra’s notes
otherwise reference Trevizo’s feet, it is to explain that “[a]
self-exam of the feet was performed”; that her “[b]alance was
normal and gait and stance were normal”; and that a
“[m]onofilament wire test of the foot was normal.” None of
these statements supports the ALJ’s determination that
“treatment notes consistently state that her feet appeared
normal.”
The ALJ discounted the severity of Trevizo’s joint pain
because Trevizo “did not take narcotic medications due to
pain.” A claimant’s subjective symptom testimony may be
undermined by “an unexplained, or inadequately explained,
failure to . . . follow a prescribed course of treatment. While
there are any number of good reasons for not doing so, a
claimant’s failure to assert one, or a finding by the ALJ that
the profferred [sic] reason is not believable, can cast doubt on
the sincerity of the claimant’s pain testimony.” Fair v.
Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (citations omitted).
The record reflects only one instance in which Trevizo was
prescribed narcotics: Trevizo told Dr. Ackerman that when

7
It is also not clear that Dr. Galhotra’s notes signify that there were
no plaques on Trevizo’s feet. The word “ulcer” refers to foot ulcers
caused by diabetes; Dr. Galhotra likely checked for diabetic ulcers and
recorded that Trevizo’s feet had a “normal appearance” when no such
ulcers appeared.

Case: 15-16277, 09/14/2017, ID: 10580488, DktEntry: 41, Page 27 of 35

TREVIZO V. BERRYHILL

27

she went to the emergency department for elbow pain she
“was given a prescription for oxycodone but did not take it as
she was fearful of becoming narcotic addicted. Instead she
took hydroxyzine which she says kept her pain under
control.” The ALJ did not address the believability of
Trevizo’s proffered reasons: her fear of becoming addicted to
narcotics and the ability of alternate drugs to control her pain.
The ALJ’s weighing of Trevizo’s failure to take narcotics
against her credibility was thus erroneous.8 The ALJ also
found Trevizo’s back pain not to be “severe,” an assertion we
discuss above.
The ALJ discredited Trevizo’s testimony regarding her
“weak grip and numbness in her fingers” because she found
that Dr. House wrote that Trevizo “displayed a normal grip.”
It is uncontradicted that Trevizo received carpal tunnel
surgery on both hands. Her primary care physician noted
substantial physical limitations in her gripping ability as a
result. The ALJ offered no basis, much less a “clear and
convincing” one, for crediting the opinion of an examining
psychologist with respect to Trevizo’s grip over that of
Trevizo’s primary treating physician and Trevizo’s own
testimony. Moreover, Dr. House merely observed that

8

Furthermore, it is inappropriate to factor against Trevizo’s symptom
testimony that she declined to take prescribed narcotics because she feared
addiction and instead took other medication that addressed her pain.
Taken to its logical conclusion, this could amount to a requirement that
patients take any prescribed pain medications, regardless of their addictive
or dangerous qualities, simply to avoid being found to have exaggerated
pain. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162
(9th Cir. 2008) (“[A]lthough a conservative course of treatment can
undermine allegations of debilitating pain, such fact is not a proper basis
for rejecting the claimant’s credibility where the claimant has a good
reason for not seeking more aggressive treatment.”).

Case: 15-16277, 09/14/2017, ID: 10580488, DktEntry: 41, Page 28 of 35

28

TREVIZO V. BERRYHILL

Trevizo “displayed a normal pencil grip.” This signals only
that Trevizo held a pencil in a normal manner and not that
there were no limitations to her gripping strength or fine or
gross manipulation abilities, which Dr. House would have
been in no position to assess.
B. Severity of diabetes.
“[T]he treatment records must be viewed in light of the
overall diagnostic record.” Ghanim v. Colvin, 763 F.3d 1154,
1164 (9th Cir. 2014). Read as a whole, the treatment notes
give credence to Trevizo’s testimony about the severity of her
diabetes, as it is uncontroverted that, even during periods of
uninterrupted treatment, Trevizo suffers from uncontrolled
diabetes. The specific reasons the ALJ gave for disbelieving
Trevizo’s testimony about the severity of her symptoms are
not “clear and convincing.”
The ALJ found Trevizo’s claims of fatigue to be
contradicted by the treatment notes because the notes
“generally show denials of fatigue.” Yet it is not inconsistent
with disability that Trevizo was not entirely incapacitated by
fatigue at all times, Lester, 81 F.3d at 833, and the treatment
notes reflect that Trevizo reported weakness or fatigue at
more than half of her appointments with Dr. Galhotra.
The ALJ critiqued Trevizo for periods of noncompliance
with treatment that could not be explained by loss of
insurance. Failure to follow prescribed treatment may “cast
doubt on the sincerity of the claimant’s pain testimony.”
Fair, 885 F.2d at 603. One such instance of noncompliance
was when Trevizo first broke out in psoriatic plaques and told
Dr. Galhotra she was noncompliant with her Metformin
because she feared it was causing her rash. The ALJ did not

Case: 15-16277, 09/14/2017, ID: 10580488, DktEntry: 41, Page 29 of 35

TREVIZO V. BERRYHILL

29

evaluate that claim or find it to be unbelievable, and this
instance of noncompliance therefore cannot be counted
against Trevizo. Id. The ALJ similarly noted that Trevizo’s
claims that she “could not afford her medications” fell
“during periods in which she had insurance and was regularly
seeking treatment.” This seems to suggest that it is inherently
unbelievable that a person who had insurance and was
seeking treatment would be unable to afford medication. Yet
there is no reason to believe that because Trevizo could afford
doctors’ visits, she could also afford doctors’ visits coupled
with expensive pharmaceuticals, and nothing in the record
contradicts Trevizo’s claims that she was at times
noncompliant with medication because she could not afford
it.9 “Disability benefits may not be denied because of the
claimant’s failure to obtain treatment he cannot obtain for
lack of funds.” Gamble v. Chater, 68 F.3d 319, 321 (9th Cir.
1995). At a handful of other medical visits, treating doctors
expressed concerns with Trevizo’s compliance without giving
any explanation as to why Trevizo might be noncompliant.
These instances of noncompliance may properly be weighed
against finding Trevizo’s testimony to be believable.
9

Moreover, depending on the type of insurance coverage Trevizo had,
her plan might not have covered the entire cost of her various
prescriptions. See, e.g., Suzanne M. Kirchhoff et al., Cong. Research
Serv., R44832, Frequently Asked Questions About Prescription Drug
Pricing and Policy 11 (2017) (“During the past several years, health plans
have been imposing higher cost sharing for prescription drugs in an effort
to control spending and costs.”); Office of the Assistant Sec’y for Planning
& Evaluation, U.S. Dep’t of Health & Human Servs., Prescription Drugs:
Innovation, Spending, and Patient Access 12 ( 2016) (“[T]he out-ofpocket costs associated with some prescription drugs may result in
financial hardship for patients and their families, even if they have health
insurance.”). The ALJ did not question Trevizo about the nature of her
insurance plan’s prescription drug coverage before reaching her
conclusion.

Case: 15-16277, 09/14/2017, ID: 10580488, DktEntry: 41, Page 30 of 35

30

TREVIZO V. BERRYHILL

The ALJ suggested that “complaints of dizziness elevated
when [Trevizo] was medically noncompliant with her
diabetes medication” and that the ALJ expected that “with
medication compliance, . . . her dizziness would improve.”
The ALJ cited no treatment notes corroborating this assertion,
no doctor made the connection between Trevizo’s dizziness
and medication noncompliance, and the record does not
substantiate this belief.
C. Inability to concentrate and inconclusive answers to
questions.
The ALJ considered Trevizo’s prior work to “undercut[]
her allegations of being unable to concentrate” and “show[]
that she is able to perform more than she alleges.” Trevizo
testified that she had difficulty concentrating because she was
“distracted either by pain or fatigue or itchiness” and that she
lost track of chores because she needed to take a shower to
relieve her symptoms. Trevizo’s psoriasis and related
symptoms postdate her time as a cashier, and there is no
reason that this prior work would contradict new difficulties
in concentration caused by her symptoms. To the extent that
the record reflects a claim that Trevizo struggles with
concentration because of her borderline intellectual
functioning, Dr. House is the one who made those statements
after his evaluation; regardless of whether the ALJ thought
Dr. House was correct about Trevizo’s intellectual
limitations, his findings cannot be counted against Trevizo’s
believability.
The ALJ also cited Trevizo’s “inconsistent statements
about why she stopped working.” The ALJ noted that
Trevizo alleged that she had “stopped working as a security
guard due to flares with psoriasis” but had also “reported to

Case: 15-16277, 09/14/2017, ID: 10580488, DktEntry: 41, Page 31 of 35

TREVIZO V. BERRYHILL

31

Dr. House that she quit the job,” asserting that those
statements were contradictory. Yet there is no inconsistency
between the two assertions. Moreover, the ALJ herself noted
that Trevizo had struggled to answer Dr. House’s questions
with clarity, suggesting, “Her inability to answer questions is
more likely related to her possible borderline intellectual
functioning.” The ALJ did not explain why in some
circumstances Trevizo’s confused answers to questions
should be attributed to her intellectual limitations, whereas
when considering Trevizo’s symptom claims those answers
suggested a lack of credibility.
D. Childcare activities.
The ALJ again stressed the view that Trevizo’s childcare
responsibilities undermined her claims. “Engaging in daily
activities that are incompatible with the severity of symptoms
alleged can support an adverse credibility determination.”
Ghanim, 763 F.3d at 1165. As discussed above, however,
there is almost no information in the record about Trevizo’s
childcare activities; the mere fact that she cares for small
children does not constitute an adequately specific conflict
with her reported limitations. Moreover, “many home
activities are not easily transferable to what may be the more
grueling environment of the workplace, where it might be
impossible to periodically rest or take medication.” Fair,
885 F.2d at 603. That appears to be the case here, where
Trevizo’s childcare responsibilities permit her to rest, take
naps, and shower repeatedly throughout the day, all of which
would be impossible at a traditional full-time job.
E. Summary of factors for discounting symptom testimony.

Case: 15-16277, 09/14/2017, ID: 10580488, DktEntry: 41, Page 32 of 35

32

TREVIZO V. BERRYHILL

As the foregoing discussion explains, the vast majority of
the ALJ’s bases for rejecting Trevizo’s testimony were
legally or factually erroneous. The sole remaining reason for
discounting Trevizo’s symptom testimony is several
unexplained instances of noncompliance with diabetes
medication.10 This does not constitute substantial evidence
supporting a finding that Trevizo’s symptoms were not as
severe as she testified, particularly in light of the extensive
medical record objectively verifying her claims.
V.
“The decision whether to remand a case for additional
evidence, or simply to award benefits[,] is within the
discretion of the court.” Sprague v. Bowen, 812 F.2d 1226,
1232 (9th Cir. 1987) (remanding for determination of benefits
where the panel was “convinced that substantial evidence
does not support the Secretary’s decision, and because no
legitimate reasons were advanced to justify disregard of the
treating physician’s opinion”). “[I]f additional proceedings
can remedy defects in the original administrative proceeding,
10

The government cites two additional credibility findings the ALJ
purportedly made: Trevizo’s allegedly inconsistent responses about why
she gets headaches and the lack of objective medical evidence about
Trevizo’s ankle pain. Because the discussion of those issues is not in the
section of the ALJ’s decision addressing Trevizo’s symptom testimony,
they are not properly considered credibility findings. Nonetheless, there
is no basis for assuming that Trevizo should know the underlying cause
of her medical conditions, and her confusion about why she gets
headaches should not be counted against her. With respect to Trevizo’s
ankle pain, the absence of medical records regarding alleged symptoms is
not itself enough to discredit a claimant’s testimony. See Robbins,
466 F.3d at 883. Moreover, the record reflects that Trevizo has Achilles
tendinitis and heel and Achilles bone spurs, supporting her subjective
symptom testimony.

Case: 15-16277, 09/14/2017, ID: 10580488, DktEntry: 41, Page 33 of 35

TREVIZO V. BERRYHILL

33

a social security case should be remanded” for further
proceedings. Garrison, 759 F.3d at 1019 (quoting Lewin v.
Schweiker, 654 F.2d 631, 635 (9th Cir. 1981)). Generally,
however, where “(1) the record has been fully developed and
further administrative proceedings would serve no useful
purpose; (2) the ALJ has failed to provide legally sufficient
reasons for rejecting evidence, whether claimant testimony or
medical opinion; and (3) if the improperly discredited
evidence were credited as true, the ALJ would be required to
find the claimant disabled on remand,” id. at 1020, we
remand for an award of benefits.11
We conclude that each of the credit-as-true factors is
satisfied and thus that remand for the calculation and award
of benefits is warranted. First, the record is extensive. It
totals hundreds of pages and includes treatment notes
documenting more than 50 doctors’ visits addressing
Trevizo’s various medical conditions within the relevant time
period. The record also reflects Trevizo’s testimony before
the ALJ, her responses to numerous questionnaires about her
physical and mental limitations, and the responses of her
granddaughter, all of which corroborate her impairments. Dr.
Galhotra’s opinion is developed and substantiated by his
long-term treatment relationship with Trevizo. Moreover, the
VE specifically opined regarding the inability of an individual
with Trevizo’s physical and intellectual limitations as
described by Dr. Galhotra to sustain work.

11

In rare instances, though each of the credit-as-true factors is met,
the record as a whole leaves serious doubt as to whether the claimant is
actually disabled, see Garrison, 759 F.3d at 1021, in which case we
remand for further development of the record.

Case: 15-16277, 09/14/2017, ID: 10580488, DktEntry: 41, Page 34 of 35

34

TREVIZO V. BERRYHILL

The other two prongs of the Garrison test are also
satisfied. The ALJ failed to provide legally sufficient reasons
for rejecting the informed medical opinion of Trevizo’s
primary treating physician and instead improperly substituted
her judgment for that of the doctor. If credited as true, Dr.
Galhotra’s opinion establishes that Trevizo is disabled,
because the VE testified that someone with Trevizo’s
limitations would be unable to find full-time work. Finally,
there is no “serious doubt” based on “an evaluation of the
record as a whole” that Trevizo is, in fact, disabled, given her
severe impairments of diabetes and psoriasis; the combination
of other conditions from which she suffers, including obesity,
psoriatic arthritis, and borderline intellectual functioning; and
her advanced age. Thus, the requirements of the Garrison
test are met.
Moreover, the “exceptional facts” of this case, Terry v.
Sullivan, 903 F.2d 1273, 1280 (9th Cir. 1990), counsel
strongly in favor of remanding for immediate payment of
benefits. Trevizo is 65 years old, and she first sought benefits
more than seven years ago; her claimed disability began
almost a decade ago. She has extensive medical needs
requiring significant care, and she has frequently lacked
medical insurance and been unable to afford necessary
treatment. “[F]urther delays at this point would be unduly
burdensome.” Id. (exercising discretion to order payment of
benefits where the claimant was 64 years old and had applied
for benefits nearly four years earlier, despite a lack of
development in the record about a job for which the claimant
was purportedly qualified); see also Smolen, 80 F.3d at 1292
(remanding for determination of benefits where the claimant
had “already waited over seven years for her disability
determination”). We therefore reverse the judgment of the

Case: 15-16277, 09/14/2017, ID: 10580488, DktEntry: 41, Page 35 of 35

TREVIZO V. BERRYHILL

35

district court with instructions to remand to the ALJ for the
calculation and award of benefits.
REVERSED; REMANDED WITH INSTRUCTIONS.