                             NOT FOR PUBLICATION                             FILED
                      UNITED STATES COURT OF APPEALS                         DEC 06 2016

                                                                        MOLLY C. DWYER, CLERK
                             FOR THE NINTH CIRCUIT                       U.S. COURT OF APPEALS




JEANA BERNICE RAWA,                               No.    14-17154

                Plaintiff-Appellant,              D.C. No. 2:13-cv-01318-ROS

 v.
                                                  MEMORANDUM*
CAROLYN W. COLVIN, Commissioner
of Social Security,

                Defendant-Appellee.


                     Appeal from the United States District Court
                              for the District of Arizona
                      Roslyn O. Silver, District Judge, Presiding

                      Argued and Submitted November 15, 2016
                              San Francisco, California

Before: SCHROEDER, REINHARDT, and OWENS, Circuit Judges.1

      Jeana Rawa appeals from the district court’s judgment affirming the

Commissioner of Social Security’s denial of her application for disability

insurance benefits. The administrative law judge (“ALJ”) found that Rawa was not


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      1
          Judge Owens only joins Part I of this disposition.
disabled because she had the residual functional capacity (“RFC”) to perform her

past relevant work. We review the district court’s decision de novo and will uphold

the Social Security Administration’s disability determination “unless it contains

legal error or is not supported by substantial evidence.” Orn v. Astrue, 495 F.3d

625, 630 (9th Cir. 2007).


I.    We conclude that the ALJ erred in finding that Rawa was less than credible,

and therefore rejecting her testimony regarding her severe and chronic pain. If, as

in this case, “there is no evidence of malingering,” an ALJ may reject a claimant’s

pain testimony only for “specific, clear and convincing reasons.” Smolen v. Chater,

80 F.3d 1273, 1281 (9th Cir. 1996).

       First, the ALJ erred in concluding that Rawa’s activities of daily living were

inconsistent with her claims of debilitating pain and muscle weakness. The ALJ

found that “some of the physical and mental abilities” needed to complete Rawa’s

activities were “the same as those necessary for obtaining and maintaining

employment,” and therefore belied her claims of incapacitating pain and disability.

Yet this conclusion is contradicted by a review of Rawa’s symptom testimony and

function reports. Rawa’s daily activities, as she described them, were in fact




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consistent with her statements regarding the impairments caused by her pain and

other symptoms.

      In concluding that Rawa was less than credible, the ALJ repeatedly

mischaracterized Rawa’s level of daily activity. According to the ALJ, Rawa’s

testimony and function reports contradicted her claims of debilitating pain because

she “admitted that she had a driver[’s] license and was able to drive her son to

school,” “admitted that she was able to care for her own personal hygiene,” was

able to participate in “helping prepare dinner,” “help with basic household chores

and grocery shop,” admitted that she “used a computer daily, visited with family,

and watched television,” and “admitted she could lift 30 pounds.” An examination

of the record shows that the ALJ omitted a number of salient and dispositive facts

and details when recounting Rawa’s activity level.

      For example, the ALJ stated that Rawa admitted that she could drive her son

to school, but failed to mention that Rawa drove only a few times a week, and that

the school was “right around the corner.” The ALJ stated that Rawa admitted that

she could care for her own personal hygiene, but failed to mention that Rawa could

no longer shave her legs due to pain, that she had difficulty sitting on the toilet, and

trouble putting on socks and shoes. The ALJ stated that Rawa admitted that she

could “help with basic household chores,” but failed to mention that Rawa had to


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fold laundry lying down because of her pain, and could prepare only meals that did

not require her to stand for longer than 20 minutes. Finally, the ALJ stated that

Rawa admitted that she “used a computer daily,” but failed to mention that Rawa

said expressly that she used a computer only when lying on the couch. More

generally, the ALJ failed to recognize that Rawa stated repeatedly that she could

not stand for longer than 20 minutes, could not sit comfortably for longer than 25

minutes, and that she spent seven out of eight hours a day lying down. Such an

inaccurate representation of the record can not constitute a specific, clear, and

convincing reason for rejecting Rawa’s testimony regarding her pain and

weakness.

      In addition to ignoring critical and dispositive aspects of Rawa’s activity

level and function reports, the ALJ also erred when he failed to specify which of

Rawa’s activities were inconsistent with her symptom testimony and a finding of

disability. The ALJ’s general statement that “some” of Rawa’s physical and mental

abilities were inconsistent with her claims is not a sufficient basis upon which to

reject her testimony regarding her pain. See Ghanim v. Colvin, 763 F.3d 1154,

1163 (9th Cir. 2014) (holding that “[g]eneral findings are insufficient” to

determine that a claimant is less than credible)(internal quotation marks omitted).

Our circuit has “repeatedly warned that ALJs must be especially cautious in


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concluding that daily activities are inconsistent with testimony about pain, because

impairments that would unquestionably preclude work and all the pressures of a

workplace environment will often be consistent with doing more than merely

resting in bed all day.” Garrison v. Colvin, 759 F.3d 995, 1016 (9th Cir. 2014);

see also Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (noting that “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”). Such caution is called for in this case. There is no indication

that the limited activities Rawa engaged in comprised a “substantial” portion of her

day, or were “transferrable” to a work environment. See Ghanim, 763 F.3d at 1165.

We do not accept the premise that driving around the corner, using a computer

only while lying down, being able to stand for 20 minutes to feed one’s family, and

struggling to put on one’s shoes are consistent with being able to function at a level

necessary for “obtaining and maintaining employment.” It was therefore error for

the ALJ to conclude that Rawa’s daily activities were inconsistent with her

testimony regarding her debilitating pain and muscle weakness.

      Second, the ALJ rejected Rawa’s pain testimony on the ground that her

treatment had been “essentially routine and conservative” in nature. The ALJ found

that because Rawa had not pursued “more aggressive treatment or additional


                                           5
surgical intervention,” her pain and other symptoms were not as severe as she

alleged. As with the ALJ’s conclusion regarding Rawa’s daily activities, this

finding is also contradicted by the record and is in conflict with our controlling

case law. Contrary to the ALJ’s characterization of Rawa’s treatment as

“conservative,” Rawa underwent extensive testing after her alleged disability onset

date, some of which involved having injections in her spine and metal needles

placed into her legs. She received multiple epidural steroid injections, and was

prescribed a series of pain medications. Such procedures and treatments are neither

routine nor conservative. See, e.g., Garrison, 759 F. 3d at 1015 n.20. Additionally,

there is no evidence in the record that Rawa declined other, recommended

treatments. Rawa’s treating physician agreed that her desire to avoid further

surgery was reasonable, and told her that he could not guarantee that future

procedures would not cause her even greater pain. A conservative course of

treatment is “not a proper basis for rejecting the claimant’s credibility where the

claimant has a good reason for not seeking more aggressive treatment.” Carmickle

v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008). Because it is

contrary to the record and to the medical opinion of Rawa’s treating physicians, the

ALJ’s finding regarding her course of treatment is not a specific, clear, and

convincing reason for rejecting Rawa’s testimony.


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      Finally, the ALJ rejected Rawa’s testimony regarding her debilitating pain

because she did not show signs of muscle atrophy in her spine. Without citing any

medical finding or opinion in the record, the ALJ opined that “muscle atrophy is a

common side effect of prolonged and/or chronic pain,” and concluded that Rawa’s

pain testimony was less than credible because she did not exhibit such atrophy. It is

beyond the scope of the ALJ’s authority to offer such a medical opinion based

solely on his own personal speculation. See Tommasetti v. Astrue, 533 F.3d 1035,

1042 (9th Cir. 2008) (stating that an ALJ may not rely on his “own speculative

explanation”). Because none of the three reasons provided by the ALJ for finding

Rawa less than credible is specific, clear, and convincing, and because each is

contrary to our controlling case law, the ALJ erred in rejecting Rawa’s pain

testimony and in disregarding the impact of such symptoms on her ability to seek

and maintain employment.


II.   Because the decision of the ALJ is marked by prejudicial legal error, we

reverse. Further, we agree with Rawa that remand for an award of benefits is

appropriate in this case. We remand to calculate and award benefits when (i) the

record is fully developed and further administrative proceedings would serve no

useful purpose, (ii) the ALJ had not provided legally sufficient reasons for

rejecting the evidence, and (iii) if the improperly discredited evidence were

                                          7
credited as true, the ALJ would be required to find the claimant disabled on

remand. Garrison, 759 F. 3d at 1020. Each of these factors is met in this case.

        On the first factor, the record in this case includes hundreds of pages of

medical reports, Rawa’s testimony before the ALJ, and assessments of her capacity

to do work completed by two treating physicians. There is additionally vocational

expert (VE) testimony directly addressing whether an individual with Rawa’s

alleged limitations would be able to sustain employment. Given this extensive

record, this is not a case in which the admission of more evidence would be

“enlightening.” Cf. Treichler v. Comm’r Soc. Sec. Admin., 775 F.3d 1090, 1101

(9th Cir. 2014). As we have previously noted, remand for “the purpose of allowing

the ALJ to have a mulligan” does not qualify as “useful purpose” for granting

further administrative proceedings. Garrison, 759 F. 3d at 1022.

        On the second factor, we have already discussed supra the ALJ’s failure to

provide legally sufficient reasons for discrediting Rawa’s symptom testimony as to

her severe, chronic pain and muscle weakness. We need not repeat that analysis

here.

        As to the third factor, if the improperly discredited evidence were credited as

true, it is clear that the ALJ would be required to find Rawa disabled. The VE’s

testimony at hearing is clear, unopposed, and uncontradicted: if Rawa’s symptom


                                            8
testimony is credited as true, Rawa is disabled within the meaning of the Act. Such

a finding by the VE is a sufficient basis upon which to remand for determination of

benefits.

      Under the credit-as-true rule, when an ALJ fails to provide legally sufficient

reasons to support a finding of adverse credibility, this court will not “remand

solely to allow the ALJ to make specific findings regarding that testimony. Rather,

we will . . . take that testimony to be established as true.” Varney v. Sec’y of Health

and Human Servs., 859 F.2d 1396, 1401 (9th Cir. 1988) (Varney II). As we held in

Lingenfelter v. Astrue, 504 F.3d 1028, 1041 (9th Cir. 2007), a claimant’s testimony

alone may establish disability and an entitlement to benefits. See also Moisa v.

Barnhart, 367 F.3d 882, 885-87 (9th Cir. 2004) (remanding for award of benefits

when a claimant’s symptom testimony was credited as true). In Lingenfelter, we

remanded to award benefits when the claimant testified that he needed to lie down

throughout the day due to his impairment, and the VE testified that such a

limitation would prevent sustained work. 504 F.3d at 1033, 1041. Here, Rawa

testified that, due to pain and muscle weakness, she needed to rest for seven hours

out of an eight hour work day and to lie down frequently. At Rawa’s hearing, the

VE explicitly found that such a limitation would preclude employment. Thus, if




                                           9
credited as true, Rawa’s testimony regarding her severe pain and debilitating

symptoms would require the ALJ to conclude that she was in fact disabled.

      Finally, we exercise our discretion to grant benefits under the credit-as-true

rule because this case is not one in which “an evaluation of the record as a whole

creates serious doubt that a claimant is, in fact, disabled.” Garrison, 759 F.3d at

1105-06 (internal quotation marks omitted). The record in this case is not

“uncertain and ambiguous,” and there are no “outstanding issues that must be

resolved” with respect to Rawa’s symptom testimony. Cf. Treichler, 775 F.3d at

1106. Rather, a review of the record provides no evidence calling into doubt

Rawa’s credibility or honesty.

      In light of the extensive medical record, the ALJ’s error of law, the VE’s

testimony at hearing, and the lack of any reason to doubt Rawa’s credibility, we

conclude that it would be contrary to both controlling case law and the purposes of

the Social Security Act to conduct further proceedings and to cause further

extended delay. We find this issue dispositive of the appeal, and therefore do not

address Rawa’s additional claim that the Appeals Council and district court erred

by rejecting the opinions of Dr. Aviles and Dr. Landsman. Because the evidence,

when it is given the effect required by law, demonstrates that Rawa is unable to




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seek and maintain employment, we REVERSE and REMAND for calculation and

award of appropriate benefits.




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