1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

WO

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Dessie M Bridges, 

Plaintiff, 

v. 

Commissioner of Social Security 

Administration, 

Defendant. 

No. CV-17-04148-PHX-DGC 

ORDER 

 Plaintiff Dessie Bridges seeks review under 42 U.S.C. § 405(g) of the final 

decision of the Commissioner of Social Security, which denied her disability insurance 

benefits and supplemental security income under §§ 216(i), 223(d), and 1614(a)(3)(A) of 

the Social Security Act. The Court finds that the administrative law judge’s (“ALJ”) 

decision is based on reversible legal error, and will remand for further proceedings. 

I. Background. 

 Plaintiff is a 53 year old female who previously worked as an administrative aide, 

home health aide, and caregiver-companion. A.R. 33, 160. Plaintiff applied for 

disability insurance benefits and supplemental security income in April 2013, alleging 

disability beginning on April 29, 2012. A.R. 23. On April 6, 2016, Plaintiff testified at a 

hearing before an ALJ. Id. A vocational expert also testified. Id. On May 11, 2016, the 

ALJ issued a decision that Plaintiff was not disabled within the meaning of the Social 

Security Act. A.R. 23-33. This became the Commissioner’s final decision when the 

Appeals Council denied Plaintiff’s request for review on September 13, 2017. A.R. 1-5. 
- 2 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

II. Legal Standard. 

 The Court reviews only those issues raised by the party challenging the ALJ’s 

decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The Court may set 

aside the determination only if it is not supported by substantial evidence or is based on 

legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is 

more than a scintilla, less than a preponderance, and relevant evidence that a reasonable 

person might accept as adequate to support a conclusion. Id. In determining whether 

substantial evidence supports a decision, the Court must consider the record as a whole 

and may not affirm simply by isolating a “specific quantum of supporting evidence.” Id.

(citation omitted). As a general rule, “[w]here the evidence is susceptible to more than 

one rational interpretation, one of which supports the ALJ’s decision, the ALJ’s 

conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). 

 Harmless error principles apply in the Social Security context. Molina v. 

Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012). An error is harmless if there remains 

substantial evidence supporting the ALJ’s decision and the error does not affect the 

ultimate nondisability determination. Id. “The burden is on the party claiming error to 

demonstrate not only the error, but also that it affected [her] substantial rights.” Ludwig 

v. Astrue, 681 F.3d 1047, 1054 (9th Cir. 2012). 

III. The ALJ’s Five-Step Evaluation Process. 

 To determine whether a claimant is disabled for purposes of the Social Security 

Act, the ALJ follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears 

the burden of proof on the first four steps, and the burden shifts to the Commissioner at 

step five. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). To establish disability, 

the claimant must show that (1) she is not currently working, (2) she has a severe 

impairment, and (3) this impairment meets or equals a listed impairment or (4) her 

residual functional capacity (“RFC”) prevents her performance of any past relevant work. 

If the claimant meets her burden through step three, the Commissioner must find her 

disabled. If the inquiry proceeds to step four and the claimant shows that she is incapable 
- 3 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

of performing past relevant work, the Commissioner must show at step five that the 

claimant is capable of other work suitable for her RFC, age, education, and work 

experience. 20 C.F.R. § 404.1520(a)(4). 

 At step one, the ALJ found that Plaintiff met the insured status requirements of the 

Social Security Act through June 30, 2019, and had not engaged in substantial gainful 

activity since April 29, 2012. A.R. 25. At step two, the ALJ found that Plaintiff had the 

following severe impairments: degenerative disc disease of the lumbar spine with 

stenosis; degenerative joint disease; bilateral knee pain, status post arthroscopy; and 

obesity. A.R. 26. At step three, the ALJ determined that Plaintiff did not have an 

impairment or combination of impairments that meets or medically equals a listed 

impairment. A.R. 29. At step four, the ALJ found that Plaintiff had the RFC to perform 

light work with some additional limitations and was able to perform her past relevant 

work as an administrative aide. A.R. 29, 32-33. 

IV. Analysis. 

 Plaintiff makes three arguments: (1) the ALJ erroneously discredited Plaintiff’s 

symptom testimony, (2) the ALJ erroneously rejected a nurse practitioner’s opinion, and 

(3) the ALJ erroneously credited the opinions of non-examining physicians. Doc. 12 

at 9-25. 

A. Plaintiff’s Symptom Testimony. 

 In evaluating a claimant’s symptom testimony, the ALJ must engage in a two-step 

analysis. First, the ALJ must determine whether the claimant presented objective medical 

evidence of an impairment that could reasonably be expected to produce the symptoms 

alleged. Revels v. Berryhill, 874 F.3d 648, 655 (9th Cir. 2017) (citing Garrison v. 

Colvin, 759 F.3d 995, 1014 (9th Cir. 2014)). The claimant is not required to show that 

her impairment could reasonably be expected to cause the severity of her alleged 

symptoms, only that it could reasonably have caused some degree of the symptoms. Id. 
- 4 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

Second, if there is no evidence of malingering, the ALJ may reject the claimant’s 

symptom testimony only by giving specific, clear, and convincing reasons. Id.1

 The ALJ summarized Plaintiff’s alleged symptoms: (1) constant low back and 

knee pain that limits her ability to sit, stand, walk, squat, bend, kneel, climb stairs, and 

complete chores; (2) impaired concentration that impedes her ability to follow 

instructions; (3) panic attacks; (4) depression; and (5) the need to “lie down more than 

once [per] day for one to two hours.” A.R. 30. The ALJ found that Plaintiff’s medically 

determinable impairments could reasonably be expected to cause the alleged symptoms, 

but that Plaintiff’s statements concerning the intensity, persistence, and limiting effects of 

these symptoms were not entirely consistent with the medical evidence. A.R. 31. The 

ALJ explained: “To some extent, the alleged severity of the claimant’s pain and 

limitations were less than consistent with her reported daily activities, her recent work 

history, and her treatment records.” A.R. 31. Plaintiff disputes each of these three 

reasons. 

1. Daily Activities. 

 An ALJ may reject a claimant’s symptom testimony if it is inconsistent with the 

claimant’s daily activities. See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). 

But “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. Thus, an 

ALJ may use a claimant’s daily activities to discredit symptom testimony only if the 

activities contradict the claimed limitations, or the claimant “spend[s] a substantial part 

of [her] day engaged in pursuits involving the performance of physical functions that are 

transferable to a work setting.” Orn, 495 F.3d at 639 (emphasis added). 

 

1

 Defendant opposes the clear and convincing standard of review (Doc. 13 at 5 n.1), but the Ninth Circuit has held that Defendant’s position “lacks any support in precedent and must be rejected,” Garrison, 759 F.3d at 1015 n.18. 
- 5 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

 To support her conclusion that Plaintiff’s daily activities are inconsistent with her 

alleged symptoms, the ALJ offered a four-sentence recitation of those activities. A.R. 31. 

Plaintiff contends that this reasoning is insufficient (Doc. 12 at 14), and the Court agrees. 

The ALJ did not find that Plaintiff spent a substantial part of her day performing these 

activities. Nor did the ALJ explain why Plaintiff’s activities were inconsistent with her 

claimed limitations. The Court cannot conclude that this is a clear and convincing reason 

to reject Plaintiff’s symptom testimony.2

2. Recent Work History. 

 The ALJ concluded that Plaintiff’s symptom testimony is inconsistent with “her 

recent work history” (A.R. 31), but Plaintiff contends that the ALJ failed to address her 

work history whatsoever (Doc. 12 at 14). Defendant counters that that ALJ noted 

elsewhere in her opinion that Plaintiff took part-time work after the alleged onset of 

disability. Doc. 13 at 10. Granted, the ALJ may have noted Plaintiff’s part-time work 

elsewhere in her decision, but in her analysis of Plaintiff’s credibility the ALJ neither 

cited to the record nor explained how Plaintiff’s recent work history undermines her 

symptom testimony. The Court cannot conclude that this is a clear and convincing 

reason to reject Plaintiff’s symptom testimony. 

3. Treatment Records. 

 The ALJ concluded that Plaintiff’s symptom testimony is inconsistent with “her 

treatment records” (A.R. 31), but Plaintiff contends that the ALJ failed to address her 

treatment records whatsoever (Doc. 12 at 14). Defendant counters that the treatment 

records support the ALJ’s conclusion. Doc. 13 at 7-8. Whatever the treatment records 

might reflect, the ALJ did not cite them in her analysis of Plaintiff’s symptom testimony. 

Nor did she explain how Plaintiff’s treatment records undermine her symptom testimony. 

 

2

 Plaintiff argues that the ALJ’s description of the daily activities is not supported by the portions of the record the ALJ cited. Doc. 12 at 12-13. Because the ALJ erred by failing to tie the alleged activities to Plaintiff’s symptom testimony, the Court need not address this argument. 
- 6 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

The Court cannot conclude that this is a clear and convincing reason to reject Plaintiff’s 

symptom testimony.3

4. Whether Error was Harmless. 

 Because none of the ALJ’s reasons is clear and convincing, the ALJ erred in 

discrediting Plaintiff’s testimony regarding the severity of her symptoms. See

Revels, 874 F.3d at 655. Plaintiff testified that she needed to “lie[] down more than once 

[per] day for one to two hours” (A.R. 30), and the vocational expert testified that a 

hypothetical claimant with such a limitation would be unable to work (A.R. 56-57). The 

Court therefore cannot conclude that the ALJ would have reached the same ultimate 

conclusion had she properly evaluated Plaintiff’s symptom testimony. The ALJ’s error 

was not harmless. 

B. Nurse Practitioner Kotsis. 

 Leslie Kotsis, ANP-C, is a nurse practitioner who completed a two-page RFC 

questionnaire in March 2016. A.R. 978-79. Kotsis opined that Plaintiff suffered from 

constant and severe pain that was precipitated by changing weather, movement, stress, 

hormonal changes, cold, heat, humidity, static positions, and general activity. A.R. 978 

(the only factor that does not precipitate pain was allergy). Kotsis also opined that 

Plaintiff frequently experienced deficiencies of concentration, persistence, or pace 

resulting in an inability to complete tasks in a timely manner. A.R. 979. The ALJ 

discredited Kotsis’ opinion for two reasons (A.R. 32), and Plaintiff challenges both of 

them (Doc. 12 at 19-22).4

 

3

 Plaintiff contends that this reason is also error because she need not present objective medical evidence of the severity of her symptoms. Doc. 12 at 11-12. Because 

the ALJ erred by failing to identify any medical records, the Court need not address this 

argument. 

4

 Plaintiff appears to argue that the ALJ erroneously rejected Kotsis’ opinion by comparing it to the opinions of two state agency reviewing physicians. Doc. 12 at 22. The ALJ addressed each medical opinion in the same section of her decision 

(A.R. 31-32), but Plaintiff does not cite any language from the decision to suggest that the ALJ actually relied on the non-examining physicians to reject Kotsis’ opinion (Doc. 12 at 22). 
- 7 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

 The Social Security Regulations differentiate between “acceptable” medical 

sources, which include licensed physicians, psychologists, optometrists, and podiatrists, 

and “other” medical sources, which include nurse-practitioners, physicians’ assistants, 

and public and private social welfare agency personnel. 20 C.F.R. § 404.1527(b), (f); 

SSR 06-03p.5

 An ALJ may discount an “other” source if the ALJ provides “germane” 

reasons. Revels, 874 F.3d at 655. The Ninth Circuit has found it sufficient if an “ALJ at 

least noted arguably germane reasons for dismissing [other source] testimony, even if 

[she] did not clearly link [her] determination to those reasons.” Lewis, 236 F.3d at 512. 

Germane reasons will only be legally sufficient, however, if they are supported by 

substantial evidence in the record. See Smith v. Berryhill, --- F. App’x ---, 2018 

WL 3490691, at *2 (9th Cir. July 20, 2018); Hahn v. Berryhill, 722 F. App’x 602, 604 

(9th Cir. 2017); Belcher v. Berryhill, 707 F. App’x 439, 440-41 (9th Cir. 2017). 

1. First Reason. 

 The ALJ first reasoned that Kotsis’ opinions are “highly inconsistent” with 

treatment notes reflecting that Plaintiff presented for medical appointments in “no 

apparent distress.” A.R. 32. Specifically, the ALJ cited treatment notes from February 1 

and 23, 2016, which reflect that Plaintiff was in no distress. A.R. 868, 986. Plaintiff 

contends that it is error to rely on isolated findings of “no apparent distress” to “detract 

from the overall severity of [her] condition.” Doc. 12 at 19-20. Defendant counters that 

this inconsistency is a germane reason to discredit Kotsis’ opinion. Doc. 13 at 13. The 

Court agrees with Defendant. 

 This Court has previously held that an observation of no apparent distress is not a 

clear and convincing reason to reject a claimant’s symptom testimony. See Dorsett v. 

Colvin, No. CV-16-01101-PHX-DGC, 2017 WL 840694, at *17 (D. Ariz. Mar. 3, 2017). 

A person may be disabled without constantly appearing unhealthy or in acute distress. Id. 

 

5

 The Social Security Regulations have recently been amended so that, among others, advanced practice registered nurses and physician’s assistants will be considered acceptable medical sources for claims brought after March 27, 2017. See 20 C.F.R. 

§ 404.1502(a)(7). Because Plaintiff filed her claim before this date, the amendment does 

not apply. 
- 8 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

But the ALJ need not meet the clear and convincing standard to reject Kotsis’ opinion. 

The opinion describes someone who is disabled by constant and severe pain precipitated 

by any level of activity or change in weather. A.R. 978-79. This opinion was 

undermined by medical observations that Plaintiff was in no apparent distress. And 

Plaintiff does not identify specific evidence that counters the ALJ’s conclusion that 

Plaintiff consistently appeared in no apparent distress. See Doc. 12 at 19 n.11 (stating 

without citation that these records “are not representative of [Plaintiff’s] overall 

condition”). The Court finds that the ALJ provided a germane reason supported by 

substantial evidence in the record. Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 

2005). 

2. Second Reason. 

 The ALJ next asserted that Kotsis’ opinion is contradicted by her own treatment 

records. A.R. 32. Kotsis repeatedly noted Plaintiff’s allegations of maximum pain that 

medication could not alleviate. A.R. 32 (citing A.R. 779, 783, 787, 790). Yet Kotsis also 

consistently noted that Plaintiff’s pain was “moderate to severe without pain medication 

but controlled by at least 30-50% on most days with pain medication.” A.R. 32 (citing 

A.R. 782, 786, 790). Plaintiff offers three arguments, but Defendant does not respond to 

them. Defendant instead emphasizes that inconsistency is a germane reason to discredit 

Kotsis’ opinion. Doc. 13 at 13. 

 Plaintiff first contends that the ALJ cannot find a contradiction in attempts to 

quantify pain levels. Doc. 12 at 20-21. Because such quantification is an imperfect 

science, Plaintiff argues, it is error to rely on quantification in discrediting Kotsis’ 

opinion. Id. Although subjective descriptions of pain are not objective medical evidence, 

the ALJ did not identify a minor contradiction between 7/10 pain and 8/10 pain. The 

ALJ identified an inconsistency between simultaneous descriptions of 10/10 pain even 

with medication and Kotsis’ observations that Plaintiff’s pain was “moderate to severe 

without pain medication but controlled by at least 30-50% on most days with pain 
- 9 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

medication.” A.R. 32. Quantifying pain may be an imprecise exercise, but these 

assertions clearly are inconsistent. 

 Plaintiff next argues that the ALJ erroneously interpreted Kotsis’ observation of 

controlled pain as a finding of improved symptoms. Doc. 12 at 21. Plaintiff cites 

authority for the proposition that a “stable” condition does not imply improvement, but 

identifies no authority for the assertion that “controlled pain” does not imply 

improvement. Id. at 21-22. “Where the evidence is susceptible to more than one rational 

interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be 

upheld.” Thomas, 278 F.3d at 954. Plaintiff may disagree with the ALJ’s reading of 

Kotsis’ observation, but the Court concludes the ALJ’s interpretation of pain “control” is 

reasonable. 

 Plaintiff finally contends that inconsistencies in the treatment notes cannot 

undermine Kotsis’ opinions about Plaintiff’s work capacities because “treatment notes 

are not intended to document patients’ functional capacities.” Doc. 12 at 22. Plaintiff 

cites no authority for this proposition, and the Ninth Circuit has held that inconsistency 

with the medical evidence is a germane reason to discredit a nurse practitioner’s opinion. 

Bayliss, 427 F.3d at 1218. 

 The Court finds that the ALJ provided germane reasons supported by substantial 

evidence in the record in rejecting Kotsis’ opinion. 

C. State Agency Reviewing Physicians.

 The ALJ accorded great weight to the opinions of state agency reviewing 

physicians that Plaintiff was capable of performing some range of light work and 

therefore was not disabled. A.R. 31. Plaintiff contends that this was error because the 

“ALJ did not provide citation to specific medical evidence of record in support of this 

conclusion[.]” Doc. 12 at 22. Defendant does not respond to this argument. See

Doc. 13. 

 Plaintiff cites no authority for the proposition that an ALJ commits error merely 

by crediting a physician’s opinion. See Doc. 12 at 22-24 (citing 20 C.F.R. § 404.1527(c) 
- 10 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

(describing relevant factors). Nor does Plaintiff contend that the non-examining 

physician opinions are totally unsupported by the record.6

 Plaintiff appears to ask the 

Court to reweigh the medical evidence in favor of Kotsis (Doc. 14 at 3), but the Court 

declines to do so. “Even when the evidence is susceptible to more than one rational 

interpretation, we must uphold the ALJ’s findings if they are supported by inferences 

reasonably drawn from the record.” Molina, 674 F.3d at 1111. 

V. Scope of Remand. 

 The ALJ erred in her consideration of Plaintiff’s symptom testimony. Plaintiff 

contends that, crediting her testimony as true, the Court must remand for an award of 

benefits. Doc. 12 at 16-17, 24-25. Defendant counters that the appropriate remedy is a 

remand for further proceedings. Doc. 13 at 14-15. 

 “When the ALJ denies benefits and the court finds error, the court ordinarily must 

remand to the agency for further proceedings before directing an award of benefits.” 

Leon v. Berryhill, 880 F.3d 1041, 1045 (9th Cir. 2017). Under a “rare exception” to this 

rule, the Court may remand for an immediate award of benefits after conducting a threepart inquiry: 

The three-part analysis . . . is known as the “credit-as-true” rule. First, we 

ask whether the ALJ failed to provide legally sufficient reasons for 

rejecting evidence, whether claimant testimony or medical opinion. Next, 

we determine whether there are outstanding issues that must be resolved 

before a disability determination can be made, and whether further 

administrative proceedings would be useful. When these first two 

conditions are satisfied, we then credit the discredited testimony as true for 

the purpose of determining whether, on the record taken as a whole, there is 

no doubt as to disability. 

 

6

 Plaintiff argues: “Instead of assigning proper weight to NP Kotsis’[] assessment, 

the ALJ assigned great weight to the opinions completed by the state agency nonexamining medical consultants. In support, the ALJ only stated ‘Aside from their professional expertise in the evaluation of disability claims, their opinions with respect to [Plaintiff] were consistent with the evidence of record taken as a whole.’ The ALJ did 

not provide citation to specific medical evidence of record in support of this conclusion, again falling short of the ALJ’s duty to fully evaluate the medical evidence and provide a thorough explanation and basis for his reasoning.” Doc. 12 at 22 (citations omitted). But Plaintiff cites no authority to suggest that an ALJ may credit the opinion of a non- examining doctor only if she cites portions of the record that support the opinion. 
- 11 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

Id. (internal quotation marks and citations omitted). Leon emphasized that the Court has 

discretion to remand for further proceedings even if it reaches the third step in the 

process. Id. “Where an ALJ makes a legal error, but the record is uncertain and 

ambiguous, the proper approach is to remand the case to the agency.” Id. (quotation 

marks omitted). 

 Applying step two of the Ninth Circuit’s test, the Court concludes that outstanding 

issues must be resolved before a disability determination can be made. The ALJ properly 

discredited Kotsis’ opinion, and Plaintiff has not provided a basis for finding error in the 

ALJ’s reliance on the opinions of non-examining physicians. But the ALJ did err in 

discrediting Plaintiff’s symptom testimony, which creates an unresolved issue: how 

should that testimony be weighed against the lack of credibility in Kotsis’ opinion and the 

opinions of the non-examining physicians? The Court concludes that further proceedings 

on these issues would be useful, and will remand for such proceedings. 

IT IS ORDERED that the final decision of the Commissioner of Social Security 

is vacated and this case is remanded for further proceedings consistent with this 

opinion. The Clerk shall enter judgment accordingly and terminate this action. 

 Dated this 7th day of September, 2018.