BACKGROUND

Claimant Bruce Albertson developed a sudden headache in October 2007.

The pain was so severe that his wife took him to the emergency room. Albertson

had no prior history of headaches, and the emergency doctors could not determine

the headache’s cause. The headache has persisted ever since.

Seeking a diagnosis, Albertson consulted with a series of doctors, including

at least eight neurologists, over a period of three years. The doctors were unable to

settle on a conclusive diagnosis. Albertson’s pain did not improve with medication

or other treatment, including an extended course of opiate painkillers, two occipital

nerve blocks, and a radiofrequency ablation.

In January 2010, Albertson sought treatment at the Mayo Clinic. There, he

was diagnosed with New Persistent Daily Headache (“NPDH”), a new headache

1 While that appeal was pending, Albertson applied for disability benefits a second time, for the period beginning the day after the first ALJ’s adverse decision. Relying on nearly the same record as in the first proceedings, the second ALJ found Albertson disabled and awarded benefits. We issued a limited remand of the pending appeal, allowing the district court to consider a motion to set aside its previous decision under Federal Rule of Civil Procedure 60(b). The district court denied the motion, and Albertson again appealed. The two appeals — from the affirmance of the first ALJ’s adverse decision and the denial of the Rule 60(b) motion — were consolidated for our review.

2 occurring in a person who does not have a past history of frequent headaches,

which persists on a daily basis for more than three months. The disorder is

characterized by its sudden onset. The Mayo team believed that Albertson’s

previous pain prescriptions had exacerbated the headaches and recommended a

different course of medication. The ALJ denied Albertson’s application for

benefits soon after.

ANALYSIS

1.

Where a claimant “has presented evidence of an underlying impairment and

the government does not argue that there is evidence of malingering,” we review

an ALJ’s rejection of the claimant’s testimony “for specific, clear and convincing

reasons.” Burrell v. Colvin, 775 F.3d 1133, 1136 (9th Cir. 2014) (footnote and

internal quotation marks omitted). “This is not an easy requirement to meet: ‘The

clear and convincing standard is the most demanding required in Social Security

cases.’” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v.

Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). Here, NPDH was

a diagnosed, underlying impairment. And the ALJ determined that “the claimant’s

medically determinable impairments could reasonably be expected to cause the

alleged symptoms . . . .” Albertson v. Colvin, No. CV 12-2508-JPR, 2013 WL

3 2251639, at *16 (C.D. Cal. May 22, 2013). Therefore, the ALJ was required to

present specific, clear, and convincing reasons to reject Albertson’s testimony

about the extent of his NPDH-related symptoms. Yet, the ALJ never mentioned the

NPDH diagnosis. In fact, the ALJ never even mentioned that Albertson was seen

at the Mayo Clinic, much less what the Mayo Clinic’s diagnosis was. This was

error. See Lingenfelter v. Astrue, 504 F.3d 1028, 1038 n.10 (9th Cir. 2007) (“[A]n

ALJ cannot avoid” the required deference to the treating physician’s opinion

“simply by not mentioning the treating physician’s opinion and making findings

contrary to it.”).

The ALJ relied on the fact that Albertson could do basic household chores

and occasionally run errands to support a finding that Albertson’s pain did not

interfere with his daily activities. “We have repeatedly warned that ALJs must be

especially cautious in 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, 759 F.3d at 1016.

Albertson testified that most of his day is spent laying down; he no longer

socializes and avoids driving as much as possible. He cannot help with laundry or

childcare. That Albertson could run errands or do chores on occasion is consistent

4 with testimony that he experiences constant mid-level pain that spikes to nearly

unmanageable levels about twice per week. Cf. id. (“The ability to talk on the

phone, prepare meals once or twice a day, occasionally clean one’s room, and, with

significant assistance, care for one’s daughter, all while taking frequent hours-long

rests . . . and lying in bed most of the day” was consistent with a claim of

debilitating pain.). The ALJ did not provide specific, clear, and convincing reasons

to reject Albertson’s testimony.

The ALJ articulated no other reasonable basis for rejecting Albertson’s pain

testimony. Moreover, taken as a whole, the record strongly corroborates

Albertson’s credibility. Albertson continually sought treatment, asking for second,

third, and fourth opinions when his original team was unable to identify the cause

of his pain. Because Albertson had seen at least eight neurologists prior to the

hearing, the record includes an extensive medical history documenting Albertson’s

consistently high levels of pain over time. There is no indication in the record that

Albertson’s physicians disbelieved his complaints; rather, they continued to adjust

his medications, order new tests, and even performed minor surgery to discover the

cause of Albertson’s complaints. Finally, Albertson’s record shows a high rate of

compliance with the varying courses of treatment his doctors prescribed. Cf. Fair

v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (noting that permissible reasons to

5 find a claimant’s testimony not credible include an unexplained failure to seek

treatment or comply with a prescribed treatment). The ALJ’s adverse credibility

determination was not supported by the record, and therefore failed to satisfy the

requirement of providing a specific, clear, and convincing reason to discredit

Albertson’s pain-related tesimony. Garrison, 759 F.3d at 1016.

2.

“[I]n appropriate circumstances courts are free to reverse and remand a

determination by the Commissioner with instructions to calculate and award

benefits.” Id. at 1019. Under the three-part “credit-as-true” standard, we remand

for benefits if each of the following conditions is satisfied:

(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. The decision to remand for an award of benefits is always

discretionary, and the court may decline to award benefits if there is “serious

doubt” the petitioner is disabled. Id. at 1021. Here, Albertson meets all three

conditions of the credit-as-true standard.

6 First, Albertson provides us with an expansive, and remarkably consistent,

record; the Commissioner proffers no evidentiary conflict requiring further

development. Second, as discussed above, the ALJ failed to provide legally

sufficient reasons to support his adverse credibility determination. Third, as in

Garrison, “the strength of the improperly discredited evidence, which we credit as

true” requires a finding of disability on remand. Id. at 1022. After years of inquiry

and a battery of tests, a team of doctors at the Mayo Clinic diagnosed Albertson

with a rare disorder. Albertson testified that, as a result of this disorder, he has

debilitating pain at least twice per week and is bed-ridden most days. At

Albertson’s hearing, the vocational expert agreed that if Albertson were to be

absent more than three times per month due to pain, he would not be able to hold

any job in the national economy. This is sufficient to require that the ALJ find

Albertson disabled on remand.2 Id. at 1021 n.28. There is no “serious doubt” that

Albertson is disabled. Id. at 1021.

• ! •

2 The second ALJ to hear Albertson’s claim considered the same medical evidence before us on appeal. That ALJ found Albertson disabled. Although, of course, we are not bound by the second ALJ’s decision, it is consistent with our conclusion that the evidence requires a finding of disability in this case.

7 The judgment of the district court is reversed and remanded with instructions

that the district court further remand this case to the Commissioner for the

calculation and award of benefits.3

REVERSED and REMANDED.

3 We dismiss as moot the consolidated appeal from the district court’s denial of Albertson’s Rule 60(b) motion. See City of Erie v. Pap’s A.M., 529 U.S. 277, 287 (2000).

8

FILED

Circuit Judge Graber

JUL 21 2016

Albertson v. Colvin, No. 13-56245 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I respectfully dissent.

In January 2011, the first ALJ denied benefits. More than two-and-a-half

years later, a second ALJ granted benefits. In my view, the decision of the first

ALJ was supported by substantial evidence and contained no legal error, and the

two outcomes can be reconciled.

The majority asserts that the first ALJ ignored Claimant’s Mayo Clinic

visits. That assertion is incorrect. The ALJ cited the Mayo Clinic reports in noting

that Claimant gave "a history of a mass on the right side of the forehead and

chronic headaches since October 2007." AR 21 (citing AR 627). The ALJ

found—consistent with the cited Mayo Clinic reports—that Claimant had the

severe impairment of chronic headaches; the pivotal question was whether, in

January 2011, the ALJ permissibly found that those headaches did not rise to the

level of disability. In analyzing that question the ALJ again cited, among other

sources in the record, the Mayo Clinic reports—when noting that Claimant’s daily

activities and social interactions were not impaired by his mental or physical

conditions. AR 24 (citing AR 614-28) (Mayo Clinic reports stating that Claimant

reported no impairment in activity or social interactions). After considering all the

medical evidence, the first ALJ permissibly weighed that evidence and explained in appropriate detail why he credited some physicians over others.

The first ALJ also permissibly found Claimant not fully credible as to his

level of pain. Among other reasons, objective medical evidence did not support

the claim of disabling headaches; conservative treatment for the headaches

"seemed to help" (AR 25); and significant activities of daily living showed no

physical restrictions. The ALJ also gave supported reasons to find that Claimant

could perform light work despite the severe impairment of headaches—among

other things, an expert so opined.

Even if the first ALJ’s decision were incorrect, the standard for remanding

for an award of benefits is not met because there is doubt about Claimant’s

disability during the relevant period. For example, Claimant continued to work for

at least a year after he alleges the headaches began in 2007, quitting only after the

family business, a car dealership, closed in 2008. At the first hearing Claimant

testified that he worked through the end of 2008 and later received bonuses on

account of his 2008 performance, which were paid in 2009.

Additionally, the decisions of the two ALJs can be reconciled. The first one

permissibly found Claimant’s extent-of-pain testimony not fully credible, while the

second ALJ credited Claimant and examined additional medical evidence.

Moreover, the first ALJ observed that Claimant testified that his headaches were

2 "becoming more severe" (AR 24; see also AR 188, where Claimant reported that

his migraines had gotten worse), and a worsening of symptoms over time also

allows the decisions to be reconciled.

For all those reasons, I cannot join the majority disposition.

3