Vasquez

Opinion by Judge SELNA; Concurrence by Judge MICHAEL DALY HAWKINS; Dissent by Judge O’SCANNLAIN.

OVERVIEW

Priscilla Vasquez (“Vasquez”) appeals from the district court’s grant of summary judgment for the Commissioner of Social Security (“the Commissioner”) upholding a denial of Disability Insurance Benefits under 42 U.S.C. § 401 et seq. and Supplemental Security Income benefits under 42 U.S.C. § 1381 et seq. Vasquez claims that the Commissioner improperly discounted her symptom reporting, failed to consider evidence of her severe mental impairment, and improperly applied principles of res judicata.

We vacate the district court’s judgment and remand to the Commissioner for a hearing on the issue of whether Vasquez is entitled to benefits.

FACTUAL BACKGROUND

Vasquez applied for Disability Insurance Benefits and Supplemental Security Income benefits in September 1997, alleging an inability to work since October 1995 because of low back pain and other muscu-loskeletal impairments. The application was denied initially and again on reconsideration. At the initial hearing, Administrative Law Judge (“ALJ”) Richard Stacy (“ALJ Stacy”) also found that Vasquez was not disabled and…

dissenting:

Because I believe that this Circuit’s precedents cannot be reconciled, I must respectfully dissent from that part of the court’s opinion (op. at 1106-07) that discusses the crediting-as-true rule. In my view, this issue can only be resolved by the court en banc. I do agree with the court’s treatment of the remaining issues, including its conclusion that the Administrative Law Judge improperly rejected Vasquez’s testimony and that the case should be remanded for consideration of Vasquez’s ability to perform other work during steps four and five of the disability determination process.

I

When a panel is faced with an irreconcilable conflict in the law of the circuit, it is required to make a sua sponte call for en banc review. In Atonio v. Wards Cove Packing Co., Inc., the en banc court held that the three-judge panel facing conflicting circuit precedent erred in relying on one line of the court’s authority on the basis that “it expressed the ‘correct view’ or, alternatively, because it was the decision ‘first in line.’ ” 810 F.2d 1477 , 1478 (9th Cir.1987) (en banc). Rather, the court stated that “the appropriate mechanism for resolving an irreconcilable conflict is…

DISCUSSION

Standard of Review

We review the district court’s order affirming denial of benefits de novo. Schneider v. Comm’r of Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000). It may “set aside the Com- missioner’s denial of benefits when the ALJ’s findings are based on legal error or are not supported by substantial evi- dence in the record as a whole.” Id. “Substantial evidence 15104 VASQUEZ v. ASTRUE means more than a mere scintilla but less than a preponder- ance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Andrews v. Sha- lala, 53 F.3d 1035, 1039 (9th Cir. 1995). This Court “re- view[s] the administrative record as a whole” to determine whether substantial evidence supports the ALJ’s decision. Id. “The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambigui- ties.” Id. “[W]here the evidence is susceptible to more than one rational interpretation,” the ALJ’s decision must be affirmed. Id. at 1039-40.

Credibility of Vasquez’s Symptom Reporting

Vasquez argues that ALJ Rogers did not properly credit her symptom reporting when she found that…