Karen Lambert v. Andrew Saul ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KAREN LYNETTE LAMBERT, No. 19-17102
Plaintiff-Appellant,
D.C. No.
v. 2:18-cv-02122-
CKD
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the Eastern District of California
Carolyn K. Delaney, Magistrate Judge, Presiding
Argued and Submitted August 12, 2020
San Francisco, California
Filed November 17, 2020
Before: Susan P. Graber and Daniel A. Bress, Circuit
Judges, and Robert T. Dawson, * District Judge.
Opinion by Judge Bress
*
The Honorable Robert T. Dawson, United States District Judge for
the Western District of Arkansas, sitting by designation.
2 LAMBERT V. SAUL
SUMMARY **
Social Security
The panel vacated the district court’s judgment affirming
the denial of claimant’s application for disability benefits
under the Social Security Act, and remanded with
instructions to remand to the administrative law judge
(“ALJ”) for further proceedings.
A Social Security ALJ found claimant disabled
beginning June 1, 2005. The Commissioner of the Social
Security Administration (“SSA”) conducted periodic
continuing disability reviews, and determined that
claimant’s disability ended January 1, 2015.
After this court issued Bellamy v. Secretary of Health
and Human Services, 755 F.2d 1380 (9th Cir. 1985) (holding
that a claimant’s prior disability determination entitled
claimant to a presumption of continuing disability), the SSA
interpreted then-recent amendments to the Social Security
Act as foreclosing any presumption of continuing disability.
The panel held that it must defer to the SSA’s intervening
interpretation of the statute, which was a reasonable one.
The panel held, therefore, that there was no presumption of
continuing disability under the Social Security Act. The
panel concluded that the ALJ did not err in evaluating,
without any such presumption, the SSA’s determination that
the claimant was no longer disabled.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
LAMBERT V. SAUL 3
The panel held that the ALJ erred in failing to articulate
sufficient reasons for refusing to credit claimant’s testimony
about the severity of her medical condition. Here, the ALJ
did not identify the specific testimony that he discredited,
and did not explain the evidence undermining it. The panel
held that the ALJ was required to do more than was done
here, which consisted of offering non-specific conclusions
that claimant’s testimony was inconsistent with her medical
treatment. Finally, the panel held that the ALJ’s error was
not harmless.
COUNSEL
John V. Johnson (argued), Chico, California, for Plaintiff-
Appellant.
Shea L. Bond (argued) and Allison J. Cheung, Special
Assistant United States Attorneys; Deborah Lee Stachel,
Regional Chief Counsel; McGregor W. Scott, United States
Attorney; Social Security Administration, San Francisco,
California; for Defendant-Appellee.
OPINION
BRESS, Circuit Judge:
We address in this case a question that has caused
confusion in our Social Security disability benefits cases:
whether a claimant’s prior disability determination entitles
her to a presumption of continuing disability. We
recognized such a presumption in Patti v. Schweiker,
669 F.2d 582 (9th Cir. 1982), and applied it most relevantly
in Bellamy v. Secretary of Health & Human Services,
4 LAMBERT V. SAUL
755 F.2d 1380 (9th Cir. 1985). After Bellamy, however, the
Social Security Administration (SSA) interpreted then-
recent amendments to the Social Security Act as foreclosing
any presumption of continuing disability.
We conclude that we must defer to the SSA’s intervening
interpretation of the statute, which is a reasonable one. See
Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs.,
545 U.S. 967 (2005); Chevron U.S.A. v. Natural Res. Def.
Council, 467 U.S. 837 (1984). We therefore hold that there
is no presumption of continuing disability under the Social
Security Act. The Administrative Law Judge (ALJ) thus did
not err in evaluating, without any such presumption, the
SSA’s determination that claimant Karen Lambert is no
longer disabled.
The ALJ did err, however, in failing to articulate
sufficient reasons for refusing to credit Lambert’s testimony
about the severity of her medical condition. Under our cases,
the ALJ must identify the specific testimony that he
discredited and explain the evidence undermining it. Here,
the ALJ did neither. We therefore vacate the district court’s
judgment and remand with instructions to return this case to
the ALJ for proceedings consistent with this opinion.
I
Karen Lambert, now age 54, was employed as a deli
clerk and overnight retail stocker until 2005, when she
developed pain related to rheumatoid arthritis. The pain
prevented her from working. Lambert applied for Disability
Insurance Benefits, 42 U.S.C. § 401, et seq., and
Supplemental Social Security Income, 42 U.S.C. § 1382, et
seq., and an ALJ found her disabled beginning June 1, 2005.
LAMBERT V. SAUL 5
The Commissioner of the SSA must conduct periodic
continuing disability reviews of persons who receive
disability benefits. See 42 U.S.C. § 421(i); 20 C.F.R.
§ 404.1590. As part of such a continuing review, the
Commissioner, on January 6, 2015, determined that
Lambert’s disability had ended January 1, 2015. Lambert
sought reconsideration before a disability hearing officer,
who denied reconsideration. Lambert then requested a
hearing before an ALJ. See 20 C.F.R. § 404.929.
At her hearing, Lambert testified that she continues to
suffer from rheumatoid arthritis, in addition to a thyroid
condition, vision problems, anxiety, and depression. She
also has a bone spur in her foot, pain in her Achilles tendon,
and five bulging discs in her neck and back, which make it
difficult for her to walk and stand. Despite the many
medications she takes, Lambert stated that her pain is
debilitating. She asserted that she spends most of her time
in her bedroom “because it’s unbearable to move.”
Lambert provided examples about how her medical
conditions affect her daily life. She cannot lift most items or
complete certain household chores. She sometimes relies on
her daughter to help her with personal care tasks, including
bathing and dressing. She requires crutches to get to the
bathroom but has trouble using them. She drives only short
distances because her knees become stiff and painful after
long periods of sitting. Because of these limitations,
Lambert testified she would not be able to perform any job
that required standing for extended periods, frequent
fingering and handling of objects, or working in
“overwhelm[ing]” situations.
Lambert also submitted medical evidence from her
treating physicians. Several of her doctors found that her
rheumatoid arthritis was stable and that her joints showed
6 LAMBERT V. SAUL
reasonable ranges of motion and minimal inflammation. But
doctors also noted that Lambert reported continued pain and
stiffness and displayed difficulty grasping objects. Lambert
saw two podiatrists for her heel pain, and a later x-ray
revealed mild thickening of the soft tissue in that area. At
the recommendation of one podiatrist, Lambert underwent a
surgical debridement of her Achilles tendon to remove a
bone spur. Lambert also saw a pain management specialist
who administered epidural steroid injections in her back,
which were moderately successful in managing her disc-
related pain.
Finally, the ALJ received reports from several State
agency physicians on behalf of the SSA. These consultants
offered opinions that differed from Lambert’s self-
assessment. The consultants opined that Lambert was
capable of working, including work that was somewhat
strenuous in nature. Dr. Sarupinder Bhangoo, who
examined Lambert in October 2014, reported that Lambert
“move[d] around well” and “d[id] not seem to be in pain.”
He concluded that Lambert could walk up to six hours, sit up
to eight hours, and carry up to fifty pounds. Two other
doctors reviewed Lambert’s file and agreed with Dr.
Bhangoo’s conclusions, though they did not actually
examine Lambert.
The ALJ issued his decision on August 7, 2017, without
applying a presumption of continuing disability. The ALJ
found that Lambert’s current impairments consisted of
rheumatoid arthritis, bilateral calcaneal spurs, right Achilles
tendinopathy, and degenerative disc disease of the cervical
spine and lumbar spine. The ALJ concluded that Lambert
was not able to perform her prior work. But notwithstanding
Lambert’s impairments, the ALJ determined that Lambert
could perform modified “light work,” which includes lifting
LAMBERT V. SAUL 7
up to twenty pounds, a “good deal of walking and standing,”
and “pushing and pulling of arm or leg controls.” See
20 C.F.R. § 404.1567(b).
The ALJ noted that, in reaching this conclusion, he gave
the SSA’s medical consultants “little weight.” Dr. Bhangoo
“did not have the benefit of reviewing the other medical
reports contained in the current record,” and his opinion was
“not consistent with the record in its entirety.” The ALJ also
gave “little weight” to the opinions of the two other
consultants. These doctors did not personally examine
Lambert, and their opinions were also “not consistent with
the record as a whole.”
Although the ALJ found the SSA’s medical experts
largely unpersuasive, he declined to credit Lambert’s
testimony either. According to the ALJ:
After considering the evidence of record, I
find that the claimant’s current medically
determinable impairment could reasonably
be expected to produce the alleged
symptoms; however, the claimant’s
statements concerning the intensity,
persistence and limiting effects of these
symptoms are not entirely consistent with the
objective medical and other evidence for the
reasons explained in this decision.
Accordingly, these statements have been
found to affect the claimant’s ability to work
only to the extent they can reasonably be
accepted as consistent with the objective
medical and other evidence.
The ALJ determined that Lambert’s testimony was “less
than fully consistent with the evidence” for four reasons.
8 LAMBERT V. SAUL
First, Lambert had “not generally received the type of
medical treatment one would expect for a totally disabled
individual.” Second, the “record reflect[ed] significant gaps
in [her] history of treatment and relatively infrequent trips to
the doctor for the allegedly disabling symptoms.” Third,
Lambert’s “use of medications does not suggest the presence
of impairments which is more limiting than found in this
decision.” And finally, “medications have been relatively
effective in controlling [her] symptoms.”
Lambert requested review of the ALJ’s decision, but the
SSA’s Appeals Council denied her request. See 20 C.F.R.
§ 404.967. Lambert then filed an action in federal court
challenging the denial of benefits. 42 U.S.C. §§ 405(g),
1383(c). The district court granted summary judgment for
the Commissioner. This appeal followed. We “review the
district court’s order affirming the ALJ’s denial of social
security benefits de novo and will disturb the denial of
benefits only if the decision contains legal error or is not
supported by substantial evidence.” Tommasetti v. Astrue,
533 F.3d 1035, 1038 (9th Cir. 2008) (citation and quotations
omitted).
II
We first address the purely legal question whether the
ALJ erred in not applying a presumption of continuing
disability because of Lambert’s earlier, 2005 disability
determination. We hold that the ALJ did not err. The SSA
has interpreted later amendments to the Social Security Act
to preclude such a presumption, and that reasonable
interpretation warrants our deference.
LAMBERT V. SAUL 9
A
When a claimant was previously found to be disabled
and the SSA is conducting a continuing disability review, is
the claimant entitled to any presumption that her disability
still persists? Our cases point in different directions.
In Patti v. Schweiker, 669 F.2d 582 (9th Cir. 1982), a
claimant received disability benefits but the SSA determined
that her disability had resolved. We used the occasion to
announce a presumption of continuing disability, holding
that “a prior ruling of disability can give rise to a
presumption that the disability still exists.” Id. at 586. We
explained that we were “unable to discern any reason why
the familiar principle that a condition, once proved to exist,
is presumed to continue to exist, should not be applied when
disability benefits are at stake.” Id. at 587; see also Murray
v. Heckler, 722 F.2d 499, 500 (9th Cir. 1983) (explaining the
operation of the presumption).
Patti did not purport to locate its presumption of
continuing disability in any text in the Social Security Act.
Instead, for support Patti cited only the Fifth Circuit’s
decision in Rivas v. Weinberger, 475 F.2d 255 (5th Cir.
1973). See Patti, 669 F.2d at 586–87. Rivas, in turn, devised
a presumption based on an offhand statement in Hall v.
Celebrezze, 314 F.2d 686, 688 (6th Cir. 1963). See Rivas,
475 F.2d at 258. Neither Rivas nor Hall conducted any
statutory analysis. Nevertheless, various circuits around this
time adopted a presumption of continuing disability in some
form or another. See Rush v. Sec’y of Health & Human
Servs., 738 F.2d 909, 914–15 (8th Cir. 1984); Dotson v.
Schweiker, 719 F.2d 80, 82 (4th Cir. 1983); Kuzmin v.
Schweiker, 714 F.2d 1233, 1237 (3d Cir. 1983); Simpson v.
Schweiker, 691 F.2d 966, 969 (11th Cir. 1982); Rivas,
475 F.2d at 258.
10 LAMBERT V. SAUL
In 1984, Congress passed the Social Security Disability
Benefits Reform Act. Pub. L. No. 98-460, 98 Stat. 1794(1984) (“Reform Act”). The Reform Act “made
comprehensive revisions in the disability program,” Bowen
v. City of New York, 476 U.S. 467, 486 n.14 (1986), and
reflected a substantial overhaul of the standards and
procedures for terminating disability benefits. See Huie v.
Bowen, 788 F.2d 698, 700 (11th Cir. 1986) (“The Act listed
new standards for determining when disability benefits paid
pursuant to various titles of the Social Security Act are to be
terminated.”).
As relevant here, the Reform Act amended the Social
Security Act to include the following key passage regarding
the standard for terminating benefits:
Any determination made under this section
shall be made on the basis of the weight of
the evidence and on a neutral basis with
regard to the individual’s condition, without
any initial inference as to the presence or
absence of disability being drawn from the
fact that the individual has previously been
determined to be disabled.
42 U.S.C. §§ 423(f), 1382c(a)(4) (1984). 1 Section 423(f)
lays out the circumstances in which the SSA can conclude
that disability benefits may be terminated, such as findings
of medical improvement, new techniques or evaluations that
make an impairment less disabling, or a prior disability
determination that was erroneous. See also id.§ 1382c(a)(4). The Reform Act took effect on October 9,
1
A later amendment relocated the provision in 42 U.S.C.
§ 1382c(a)(4) to 42 U.S.C. § 1382c(a).
LAMBERT V. SAUL 11
1984, but Congress mandated that any determination
relating to medical improvement pending judicial review as
of September 19, 1984 was to be returned to the Secretary of
Health and Human Services for reconsideration under the
new standard. Reform Act, 98 Stat. 1794 § 2(d)(2)(C).
Six months later, we decided Bellamy v. Secretary of
Health & Human Services, 755 F.2d 1380 (9th Cir. 1985).
Like Patti, Bellamy was an appeal by a Social Security
claimant whose disability benefits had been terminated. The
claimant’s challenge seemingly should have been decided
under the amended version of the statute, but we did not
mention the 1984 Reform Act or analyze the new statutory
provision. Because Bellamy was pending judicial review as
of September 19, 1984, it appears that the case should have
also been returned to the Secretary of Health and Human
Services for consideration under the new legal standard.
Reform Act, 98 Stat. 1794 § 2(d)(2)(C). It is not apparent
whether either party advised the court about the 1984
revisions to the Social Security Act (the case was submitted
several days before the new amendments took effect).
Instead, Bellamy applied the “presumption of continuing
disability” and held that the Secretary had “failed to offer
evidence sufficient to overcome the presumption.” 755 F.2d
at 1381.
Following Bellamy, we took note of the continuing
disability presumption on a few occasions. But it appears
that we never applied the presumption again in a published
opinion. Instead, and although they did not concern the
issue, our later cases made unelaborated statements on
whether the presumption survived the 1984 Reform Act.
In Warren v. Bowen, 804 F.2d 1120 (9th Cir. 1986) (per
curiam), amended on denial of reh’g, 817 F.2d 63 (9th Cir.
1987), we considered a claimant whose benefits were
12 LAMBERT V. SAUL
terminated for a non-medical reason (her income changed).
Id. at 1121. We rejected the claimant’s argument, grounded
in Patti, that the claimant was entitled to a presumption of
continuing disability, explaining that non-medical
terminations are subject to a specific regulation that
prescribes a disability presumption of only one year. Id. We
then stated: “Appellant’s argument that we should use Patti
to second-guess the Secretary on this point was undercut by
Congress’s decision in 1984 to eliminate the presumption
that Patti created.” Id. (emphasis added). See also Warren,
817 F.2d at 64 (indicating that this was the wording used in
the initial Warren opinion).
We discussed the presumption again in W.C. v. Bowen,
807 F.2d 1502 (9th Cir. 1987), a class action concerning the
Secretary’s enactment of a review program for termination
decisions. Id. at 1503–04. In a footnote, W.C. cited Warren
for the proposition that the 1984 Reform Act “overrule[d]
the presumption of continuing disability under Patti v.
Schweiker, 669 F.2d 582, 586–87 (9th Cir. 1982).” Id.at 1506 n.8.
Several months later, however, we amended Warren by
deleting the portion of the sentence that we relied on in W.C.
As noted, Warren originally said Congress in 1984
endeavored to “eliminate the presumption that Patti
created.” 804 F.2d at 1121 (emphasis added). In the
amended opinion, we replaced “eliminate” with “codify,” so
that the affected sentence now reads: “Appellant’s argument
that we should use Patti to second-guess the Secretary on
this point was undercut by Congress’s decision in 1984 to
codify the presumption that Patti created.” 804 F.2d at 1121
(emphasis added). No explanation was given for this
change. And no changes were made to W.C., which had
relied on the earlier version of Warren.
LAMBERT V. SAUL 13
But the next sentences in Warren clarified what we
meant by “codify”: in light of the 1984 amendments, we
explained, “[w]e must now look to the statute and the
regulations for guidance,” and those “support the Secretary’s
position” that the claimant was not entitled to a presumption
of disability but was required to show disability. Id. In other
words, Warren directed that the space in which the
presumption had previously operated was now the subject of
statute and regulation, so that courts should follow “the
statute and the regulations” and not any judge-made
presumption. 2 Id. That is why the 1984 amendments
“undercut” the claimant’s position in Warren, which sought
a judge-made presumption in the face of regulations that
applied in that area. Id.; see also Stubbs-Danielson v. Astrue,
539 F.3d 1169, 1172 (9th Cir. 2008) (relying on Warren to
reject claimant’s argument that the ALJ erred in failing to
apply a presumption of disability).
Most recently, we rejected a pro-claimant presumption
in Parra v. Astrue, 481 F.3d 742 (9th Cir. 2007), holding
that, under 1996 amendments to the Social Security Act,
before the claimant is considered disabled, he bears the
burden of proving that substance abuse is not a material
contributing factor to his disability. Id. at 744–45. We
explained that the presumption in Bellamy applied only
when the claimant had already been found disabled. Id.
at 748. But Parra did not validate the presumption of
continuing disability, nor did it address the suggestions in
Warren and W.C. as to whether the presumption remained
2
As the Fourth Circuit has explained, the 1984 amendments could
be said to “partially codify[]” preexisting case law insofar as that in the
case of termination decisions based on medical improvement, there must
be “substantial evidence of medical improvement.” Rhoten v. Bowen,
854 F.2d 667, 669 (4th Cir. 1988).
14 LAMBERT V. SAUL
good law. In fact, neither Warren, W.C., nor Parra had
occasion to address that issue, because each case involved
different issues. Bellamy thus remains our last word on the
presumption that Patti fashioned.
B
There was, however, a material change in the law post-
Bellamy that we have never considered: the SSA’s
authoritative interpretation of the 1984 Reform Act as
precluding any presumption of continuing disability.
The Reform Act required that the SSA promulgate
implementing regulations through notice and comment
rulemaking procedures. 42 U.S.C. § 421(k). The SSA
published its proposed rules on April 30, 1985, with a public
comment period through June 14, 1985. See Old-Age,
Survivors, and Disability Insurance and Supplemental
Security Income for the Aged, Blind, and Disabled;
Determining Disability and Blindness, 50 Fed. Reg. 18432-
01, 1985 WL 105099, at *18432 (Apr. 30, 1985) (to be
codified at 20 C.F.R. pts. 404, 416). Because the Act
contemplated significant changes in this area of law, the SSA
received “literally hundreds” of public submissions, which
included data, views, and other comments from a wide
variety of interested persons, organizations, and public
agencies. See Supplemental Security Income; Disability and
Blindness Determinations, 50 Fed. Reg. 50118-01, 1985 WL
125771, at *50121 (Dec. 6, 1985) (to be codified at
20 C.F.R. pts. 404, 416). The SSA “carefully consider[ed]”
these comments both in making “extensive changes” to the
proposed rules and in “reply[ing] to the issues raised in the
comments [it] received.” Id. at *50118.
The SSA issued its final regulations on December 6,
1985, more than ten months after our decision in Bellamy.
LAMBERT V. SAUL 15
Id. On the issue that is our focus here, the SSA’s regulations
essentially rehashed the language of the 1984 Reform Act,
providing that termination decisions should be made “on a
neutral basis—without any initial inference being drawn
from the fact that an individual had previously been
determined to be disabled.” Id. at *50119; see also 20 C.F.R.
§§ 404.1579(b)(4), 404.1594(b)(6).
The SSA also published responses to public comments,
which were issued in the preamble to the final regulations.
50 Fed. Reg. 50118-01, 1985 WL 125771, *50121
(“Comments Received Following Publication of the Notice
of Proposed Rulemaking”). The SSA noted that its
responses to the comments were aimed at “expand[ing] and
clarif[ying]” its regulations in order to “make the meaning
of the rules more precise,” and thereby contribute to “the
uniformity and equity” with which they would be applied.
Id.One such response to public comments is particularly
relevant here. The SSA noted that “[s]everal commenters
stated that the proposed rules did not consider a beneficiary’s
rights to continued benefits once on the rolls. They felt a
presumption of disability should be applied until otherwise
overturned.” Id. at *50124. The SSA responded
unequivocally that “[t]he expressed intent of the Congress as
stated in the report of the Conference Committee is that the
continuing disability decision should be made on a neutral
basis. No inference should be drawn that disability
continues because disability was once found to exist or that
disability ends because the issue is being reviewed. The
regulatory language reflects the language used in this
report.” Id. The “report of the Conference Committee” to
which the SSA referred was a House Conference Report,
which stated in relevant part:
16 LAMBERT V. SAUL
The conferees intend that determinations of
continuing eligibility should be made on a
basis which is as nearly neutral as possible.
The Secretary should reach conclusions on
the basis of the weight of the evidence, as
applied to the statutory standards specified in
this amendment, and without any
preconception or presumption as to whether
the individual is or is not disabled.
H.R. Conf. Rep. 98-1039, 26, 1984 WL 37437, at *26 (Sept.
19, 1984). In other words, through its response to public
comments, the SSA determined that a presumption of
continuing disability was unavailable under the new statute.
We have never considered the legal effect of the SSA’s
interpretation of the 1984 Reform Act. As a three-judge
panel, we are bound by circuit precedent except “where the
reasoning or theory of our prior circuit authority is clearly
irreconcilable with the reasoning or theory of intervening
higher authority.” Miller v. Gammie, 335 F.3d 889, 893 (9th
Cir. 2003) (en banc). This venerable principle commands
our utmost respect and is central to the rule of law in
appellate decision-making.
There are, however, limited circumstances in which we
are permitted—and, indeed, required—to depart from it.
Those circumstances include the “intervening higher
authority,” id., of an administrative agency’s authoritative
and reasonable interpretation of a statute. See, e.g., Campos-
Hernandez v. Sessions, 889 F.3d 564, 568–69 (9th Cir. 2018)
(deferring to an agency’s later interpretation of a statute
when the earlier judicial decision did not hold that the
agency’s interpretation was unambiguously foreclosed).
Whether such an intervening agency interpretation can
LAMBERT V. SAUL 17
overcome our prior interpretation of a statute depends, in
turn, on whether we regarded the statute as unambiguously
compelling our interpretation.
The Supreme Court’s decision in Brand X is the guiding
precedent. There, the Court held that “[a] court’s prior
judicial construction of a statute trumps an agency
construction otherwise entitled to Chevron deference only if
the prior court decision holds that its construction follows
from the unambiguous terms of the statute and thus leaves
no room for agency discretion.” 545 U.S. at 982.
On various occasions, we have relied on the principle of
Brand X to recognize that an agency’s intervening
interpretation of a statute commanded deference in the face
of a contrary circuit precedent. See Betansos v. Barr,
928 F.3d 1133, 1136 (9th Cir. 2019); Campos-Hernandez,
889 F.3d at 568–69; Ctr. for Biological Diversity v. Zinke,
900 F.3d 1053, 1063–64 (9th Cir. 2018); Garfias-Rodriguez
v. Holder, 702 F.3d 504, 516 (9th Cir. 2012) (en banc);
Gonzales v. DHS, 508 F.3d 1227, 1237–39 (9th Cir. 2007);
Metrophones Telecomm., Inc. v. Glob. Crossing
Telecomms., Inc., 423 F.3d 1056, 1061 (9th Cir. 2005), aff’d,
550 U.S. 45 (2007); Skranak v. Castenada, 425 F.3d 1213,
1220 (9th Cir. 2005).
Brand X applies here because neither Bellamy nor any of
our past precedents held that a presumption of continuing
disability “follows from the unambiguous terms of the
statute.” Brand X, 545 U.S. at 982. In fact, and as we noted
above, our prior cases never purported to locate the
presumption of continuing disability in any statutory text.
Because “[w]e did not mention” the Reform Act in Bellamy,
we “thus could not have offered an interpretation that
‘follows from [its] unambiguous terms.’” Metrophones,
423 F.3d at 1065 (citing Brand X, 545 U.S. at 982). The
18 LAMBERT V. SAUL
question then becomes whether the SSA’s interpretation of
the Reform Act, as set forth in its response to public
comments, is entitled to Chevron deference. We conclude
that Chevron deference applies here, so that the SSA’s
authoritative interpretation of the Social Security Act
displaces our prior precedents on the issue of a presumption
of continuing disability.
The SSA is charged with administering the Social
Security Act, a complex statute. 42 U.S.C. §§ 405, 421, 423.
The Supreme Court has explained that “[t]he statute’s
complexity, the vast number of claims that it engenders, and
the consequent need for agency expertise and administrative
experience lead us to read the statute as delegating to the
[SSA] considerable authority to fill in, through
interpretation, matters of detail related to its administration.”
Barnhart v. Walton, 535 U.S. 212, 225 (2002). “We give
deference to an agency’s interpretation of statutes . . . it is
charged with administering.” Am. Fed’n of Gov’t Emps. v.
FLRA, 204 F.3d 1272, 1274–75 (9th Cir. 2000). Here, there
is no dispute that the SSA’s interpretation of the 1984
amendments brought to bear its “longstanding, technical
expertise” in administering the Social Security Act. Larson
v. Saul, 967 F.3d 914, 926 (9th Cir. 2020); see also Astrue v.
Capato ex rel. B.N.C., 566 U.S. 541, 558 (2012) (according
Chevron deference to SSA’s interpretation of Social
Security Act); Barnhart v. Thomas, 540 U.S. 20, 26 (2003)
(same).
The relevant agency action at issue here—a response to
a public comment provided in the course of a substantial
notice and comment rulemaking and included in the
preamble to the SSA’s regulations—is the type of agency
action that can merit Chevron deference. In this case,
Congress has clearly “delegated authority to the agency
LAMBERT V. SAUL 19
generally to make rules carrying the force of law,” and the
SSA provided formal responses to public comments “in the
exercise of that authority” and using “formalized
procedures” in a large rulemaking. Sierra Club v. Trump,
929 F.3d 670, 692 (9th Cir. 2019) (quotations omitted). The
Supreme Court and our court have applied Chevron
deference to agency interpretations made through such
processes and in this form. See Hillsborough Cnty. v.
Automated Med. Labs., Inc., 471 U.S. 707, 714–15 (1985)
(citing Chevron and explaining that “[t]he FDA’s statement
[responding to public comment] is dispositive on the
question of [Congress and the FDA’s] implicit intent to pre-
empt”); Pauley v. BethEnergy Mines, Inc., 501 U.S. 680,
698–99 (1991) (citing agency’s responses to comments as
“warrant[ing] deference from this Court” under Chevron);
see also Safer Chemicals, Healthy Families v. U.S. E.P.A.,
943 F.3d 397, 422 n.17 (9th Cir. 2019) (evaluating
interpretation in regulatory preamble under Chevron). Here,
because the SSA’s interpretation “represents the agency’s
considered judgment after notice and comment, industry
input and interagency consultation,” United States v. United
Healthcare Ins. Co., 848 F.3d 1161, 1177 n.9 (9th Cir.
2016), Chevron deference is available. 3
Applying Chevron’s “familiar two-step analysis,”
Betansos, 928 F.3d at 1139, we conclude that the SSA’s
interpretation of the 1984 Reform Act requires deference.
The text of the Reform Act is strongly suggestive of the
SSA’s interpretation, but Congress did not specifically
3
Because the SSA’s responses to public comments are eligible for
Chevron deference, we have no occasion to determine whether the SSA’s
regulations themselves, which merely parrot the statutory text in the
1984 Reform Act, are entitled to Chevron deference. See N. Cal. River
Watch v. Wilcox, 633 F.3d 766, 780 (9th Cir. 2011).
20 LAMBERT V. SAUL
reference any “presumption.” Some courts concluded that
the Reform Act did not “clearly overturn” the presumption
of continuing disability because “[a]n inference is not the
same as a presumption.” Medina v. Colvin, 2015 WL
5448498, at *10 (N.D. Cal. Aug. 21, 2015); see also
Palacios v. Astrue, 2012 WL 601874, at *3 (C.D. Cal. Feb.
23, 2012). And the public comments that prompted the
SSA’s authoritative interpretation of the 1984 Reform Act
likewise arose from evident uncertainty as to whether any
presumption of continuing disability should be included in
the implementing regulations. 50 Fed. Reg. 50118-01, 1985
WL 125771, at *50124. Under all these circumstances, and
although the statutory wording strongly supports the SSA’s
interpretation, it may be that Congress has not “directly
spoken” to the issue. Betansos, 928 F.3d at 1139.
Nevertheless, there is no doubt the SSA’s interpretation
is a reasonable one, requiring our deference. See Brand X,
545 U.S. at 982; Gonzales, 508 F.3d at 1241. The Reform
Act’s wording—that a disability determination must be
made “on a neutral basis with regard to the individual’s
condition, without any initial inference as to the presence or
absence of disability being drawn from the fact that the
individual has previously been determined to be disabled,”
42 U.S.C. §§ 423(f), 1382c(a)(4)—easily permits the SSA’s
interpretation that a presumption of continuing disability is
no longer allowed or justified. As we explained in Warren,
“[w]e must now look to the statute and the regulations” in
this area of law. 804 F.2d at 1121.
Our holding aligns with those from other circuits that
have confronted the issue directly, all of which have held
that there is no presumption of continuing disability after the
1984 Reform Act. See Cutlip v. Sec’y of Health & Human
Servs., 25 F.3d 284, 286 n.1 (6th Cir. 1994) (per curiam);
LAMBERT V. SAUL 21
Wilkerson v. Sec’y of Health & Human Servs., 996 F.2d 1220n.4 (7th Cir. 1993) (unpublished); Rhoten v. Bowen,
854 F.2d 667, 669 (4th Cir. 1988). 4
III
Although the ALJ correctly performed his review
without applying a continuing disability presumption, the
ALJ did err in failing to provide sufficient reasons for
rejecting Lambert’s testimony.
We will “disturb the Commissioner’s decision to deny
benefits ‘only if it is not supported by substantial evidence
or is based on legal error.’” Treichler v. Comm’r of Soc. Sec.
Admin., 775 F.3d 1090, 1098 (9th Cir. 2014) (quoting
Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)).
We therefore “leave it to the ALJ to determine credibility,
resolve conflicts in the testimony, and resolve ambiguities in
the record.” Id. But the ALJ must provide sufficient
reasoning that allows us to perform our own review, because
“the ‘grounds upon which an administrative order must be
judged are those upon which the record discloses that its
4
The Third and Fifth Circuits appear to apply some form of a
presumption, though they have not directly addressed the 1984 Reform
Act. See Chrupcala v. Heckler, 829 F.2d 1269, 1274 n.7 (3d Cir. 1987);
Loza v. Apfel, 219 F.3d 378, 395–96 (5th Cir. 2000). The Eighth and
Eleventh Circuits have recognized that the Reform Act is in tension with
a presumption of continuing disability but have yet to resolve the issue.
See Polaski v. Heckler, 751 F.2d 943, 946 (8th Cir. 1984), cert. granted,
judgment vacated sub nom. Bowen v. Polaski, 476 U.S. 1167 (1986)
(original opinion recognizing that the continuing disability presumption
“no longer stands,” but eliminating this discussion in replacement
opinion); Tomaszewski v. Colvin, 649 F. App’x 705, 705 n.2 (11th Cir.
2016) (per curiam) (“[T]he Court need not decide whether Congress
overruled the presumption of continuing disability for benefit
continuation cases when it enacted 42 U.S.C. § 423(f).”).
22 LAMBERT V. SAUL
action was based.’” Id. at 1102 (quoting SEC v. Chenery
Corp., 318 U.S. 80, 87 (1943)).
Under our well-established case law, and where, as here,
the ALJ “determines that a claimant for Social Security
benefits is not malingering and has provided objective
medical evidence of an underlying impairment which might
reasonably produce the pain or other symptoms she alleges,
the ALJ may reject the claimant’s testimony about the
severity of those symptoms only by providing specific, clear,
and convincing reasons for doing so.” Brown-Hunter v.
Colvin, 806 F.3d 487, 488–89 (9th Cir. 2015); see also
Treichler, 775 F.3d at 1102. This requires the ALJ to
“specifically identify the testimony [from a claimant] she or
he finds not to be credible and . . . explain what evidence
undermines that testimony.” Treichler, 775 F.3d at 1102
(quoting Holohan v. Massanari, 246 F.3d 1195, 1208 (9th
Cir. 2001)); see also Brown-Hunter, 806 F.3d at 493.
The ALJ’s decision does not meet the requirements set
forth in our cases and does not permit meaningful review.
The ALJ noted generically that “the claimant’s statements
concerning the intensity, persistence and limiting effects of
[her] symptoms are not entirely consistent with the objective
medical and other evidence for the reasons explained in this
decision.” But this “boilerplate statement” by way of
“introductory remark,” which is “routinely include[d]” in
ALJ decisions denying benefits, did not “identify what parts
of the claimant’s testimony were not credible and why.”
Treichler, 775 F.3d at 1103.
As noted above, the ALJ also provided four high-level
reasons as to why Lambert’s allegations were “less than fully
consistent with the evidence.” But this brief discussion was
likewise insufficient. “We cannot review whether the ALJ
provided specific, clear, and convincing reasons for rejecting
LAMBERT V. SAUL 23
[Lambert’s] pain testimony where, as here, the ALJ never
identified which testimony she found not credible, and never
explained which evidence contradicted that testimony.”
Brown-Hunter, 806 F.3d at 494. Our cases do not require
ALJs to perform a line-by-line exegesis of the claimant’s
testimony, nor do they require ALJs to draft dissertations
when denying benefits. See Treichler, 775 F.3d at 1103
(“[T]he ALJ’s analysis need not be extensive.”). But our
precedents plainly required the ALJ to do more than was
done here, which consisted of offering non-specific
conclusions that Lambert’s testimony was inconsistent with
her medical treatment. See Burrell v. Colvin, 775 F.3d 1133,
1138 (9th Cir. 2014) (explaining that we may not “take a
general finding—an unspecified conflict between
[c]laimant’s testimony . . . and her reports to doctors—and
comb the administrative record to find specific conflicts”);
see also, e.g., Brown-Hunter, 806 F.3d at 493–94; Vasquez
v. Astrue, 572 F.3d 586, 592 (9th Cir. 2009). Although the
ALJ did provide a relatively detailed overview of Lambert’s
medical history, “providing a summary of medical evidence
. . . is not the same as providing clear and convincing
reasons for finding the claimant’s symptom testimony not
credible.” Brown-Hunter, 806 F.3d at 494. 5
The district court attempted to fill in the ALJ’s
reasoning, citing portions of the record suggesting that
Lambert’s subjective pain complaints were not credible. For
example, the district court cited evidence about how
Lambert was able to “perform daily activities including
5
The Commissioner argues that the “clear and convincing reasons”
standard is too high but acknowledges that our cases clearly set forth that
standard. Nor does the Commissioner suggest an alternative standard.
Regardless, in this case, given the limited nature of the ALJ’s
explanations, the result would be the same under a more lenient standard.
24 LAMBERT V. SAUL
shopping, performing household chores, managing money,
reading, personal care, and operating a motor vehicle,” and
compared this to specific aspects of the medical evidence.
The district court’s efforts to shore up the ALJ’s decision,
while understandable, are unavailing. “Although the
inconsistencies identified by the district court could be
reasonable inferences drawn from the ALJ’s summary of the
evidence, the credibility determination is exclusively the
ALJ’s to make,” and “[w]e are constrained to review the
reasons the ALJ asserts.” Brown-Hunter, 806 F.3d at 494
(quotations and emphasis omitted).
Nor was the ALJ’s error harmless. An error is harmless
only if it is “inconsequential to the ultimate nondisability
determination.” Id. (quotations omitted). Because the ALJ
did not provide enough “reasoning in order for us to
meaningfully determine whether the ALJ’s conclusions
were supported by substantial evidence,” we cannot treat the
error as harmless. Treichler, 775 F.3d at 1103; see also
Brown-Hunter, 806 F.3d at 494–95. Treating the error as
harmless would also be problematic on this record. The ALJ
agreed that Lambert was at least impaired to the point that
she could not perform her past work. And Lambert’s
testimony held even greater potential after the ALJ rejected
as “not consistent with the record” the opinions of several
medical experts who believed that Lambert was capable of
more strenuous work.
* * *
We vacate the judgment of the district court with
instructions to remand to the ALJ for proceedings consistent
with this opinion. We have no occasion to reach Lambert’s
other assignments of error, as the record may change on
LAMBERT V. SAUL 25
remand. We express no opinion as to whether Lambert is
entitled to disability benefits.
VACATED AND REMANDED.