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WO

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Debra Sue Sallee, 

Plaintiff, 

v. 

Commissioner of Social Security 

Administration, 

Defendant. 

No. CV-17-04504-PHX-DWL

ORDER 

INTRODUCTION 

Plaintiff Debra Sue Sallee (“Sallee”) seeks review under 42 U.S.C. § 405(g) of the 

final decision of the Acting Commissioner of Social Security (“Commissioner”), which 

denied her application for disability benefits and supplemental security income. For the 

following reasons, the Court finds that the administrative law judge’s (“ALJ”) decision was 

based on reversible legal error and remands for further proceedings. 

Sallee is a 50-year-old woman who previously worked as an accounts payable clerk 

and a customer service representative and alleges she became disabled in March 2013. In 

2014, she filed applications for disability benefits and supplemental security income. (A.R. 

198-207.) Her claims were initially denied on June 12, 2014 (A.R. 68-69) and again upon 

reconsideration on November 18, 2014 (A.R. 98-99). Sallee then filed a written request 

for a hearing on December 4, 2014. (A.R. 153-154.) On June 15, 2016, she appeared and 

testified at a video hearing at which an impartial vocational expert also appeared and 

testified. (A.R. 42-67.) On July 7, 2016, the ALJ issued a decision that Sallee was not 
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disabled within the meaning of the Social Security Act. (A.R. 23-35.) The ALJ’s decision 

became the Commissioner’s final decision when the Appeals Council denied Sallee’s 

request for review on October 5, 2017. (A.R. 1-6.) 

LEGAL STANDARD 

The Court addresses only the issues raised by the claimant in the appeal from the 

ALJ’s decision. Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). “The ALJ is 

responsible for determining credibility, resolving conflicts in medical testimony, and 

resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001), as 

amended on reh’g (Aug. 9, 2001). The Court should uphold the ALJ’s decision “unless it 

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

625, 630 (9th Cir. 2007). “Substantial evidence is more than a mere scintilla but less than 

a preponderance.” Id. Put another way, “[i]t is such relevant evidence as a reasonable 

mind might accept as adequate to support a conclusion.” Id. (citation omitted). The Court 

should uphold the ALJ’s decision “[w]here evidence is susceptible to more than one 

rational interpretation,” but the Court “must consider the entire record as a whole and may 

not affirm simply by isolating a specific quantum of supporting evidence.” Id. (citations 

and internal quotation marks omitted). 

“[H]armless error principles apply in the Social Security Act context.” Molina v. 

Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012). “[A]n ALJ’s error is harmless where it is 

inconsequential to the ultimate nondisability determination.” Id. (citations and internal 

quotation marks omitted). The Court must “look at the record as a whole to determine 

whether the error alters the outcome of the case.” Id. Importantly, however, the Court may 

not uphold an ALJ’s decision on a ground not actually relied on by the ALJ. Id. at 1121. 

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). At the first step, the ALJ 

determines whether the claimant is engaging in substantial gainful activity. 20 C.F.R. 
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§ 404.1520(a)(4)(i). If so, the claimant is not disabled and the inquiry ends. Id. At step 

two, the ALJ determines whether the claimant has a “severe” medically determinable 

physical or mental impairment. Id. § 404.1520(a)(4)(ii). If not, the claimant is not disabled 

and the inquiry ends. Id. At step three, the ALJ considers whether the claimant’s 

impairment or combination of impairments meets or medically equals an impairment listed 

in Appendix 1 to Subpart P of 20 C.F.R. pt. 404. Id. § 404.1520(a)(4)(iii). If so, the 

claimant is automatically found to be disabled. Id. If not, the ALJ proceeds to step four. 

At step four, the ALJ assesses the claimant’s residual functional capacity (“RFC”) and 

determines whether the claimant is capable of performing past relevant work. Id.

§ 404.1520(a)(4)(iv). If so, the claimant is not disabled and the inquiry ends. Id. If not, 

the ALJ proceeds to the fifth and final step, which addresses whether the claimant can 

perform any other work based on the claimant’s RFC, age, education, and work experience. 

Id. § 404.1520(a)(4)(v). If so, the claimant is not disabled. Id. If not, the claimant is 

disabled. 

BACKGROUND 

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

Social Security Act through December 31, 2018 and had not engaged in substantial gainful 

activity since March 8, 2013, the alleged onset date. (A.R. 25.) At step two, the ALJ found 

that Sallee had the following severe impairments: bipolar disorder, depression, and anxiety 

disorder. (A.R. 26.) The ALJ also found that Sallee had the non-severe impairments of 

interstitial cystitis, obesity, and high blood pressure. (Id.) At step three, the ALJ 

determined that Sallee did not have an impairment or combination of impairments that 

meets or medically equals the severity of a listed impairment. (A.R. 26-28.) At step four, 

the ALJ found that Sallee had the residual functional capacity to perform a full range of 

work at all exertional levels but with the following nonexertional limitations: limited to 

simple routine and repetitive tasks, with only occasional interaction with the public. (A.R. 

28-33.) The ALJ further found that Sallee was not capable of performing any past relevant 

work. (A.R. 33.) At step five, the ALJ found that, considering Sallee’s age, education, 
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work experience, and residual functional capacity, there are jobs that exist in significant 

numbers in the national economy that Sallee can perform, including janitor and dishwasher. 

(A.R. 33-34.) 

Sallee argues that the ALJ’s decision is defective for four reasons: (1) the ALJ erred 

during step four by rejecting Sallee’s symptom testimony; (2) the ALJ erred during step 

four by assigning “great weight” to state agency consultants; (3) the ALJ erred during step 

two in finding Sallee’s interstitial cystitis was not a severe impairment; and (4) the ALJ 

erred during step five in only limiting Sallee’s mental work capacities to work that involves 

simple, routine, and repetitive tasks. (Doc. 15.) 

As explained below, the Court agrees with Sallee that the ALJ committed reversible 

error when evaluating the severity of her interstitial cystitis and when rejecting her 

symptom testimony. Given these conclusions, it is unnecessary to resolve Sallee’s 

remaining assignments of error, because they pertain to later stages of the five-step process 

and the ALJ’s analysis during those stages may be different on remand. 

ANALYSIS 

I. Whether the ALJ Erred in Finding Sallee’s Interstitial Cystitis Was Not Severe 

At step two, the ALJ considers whether the claimant has a “severe disability,” 

defined as “any impairment or combination of impairments which significantly limits [the 

claimant’s] physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520. 

“An impairment or combination of impairments can be found ‘not severe’ only if the 

evidence establishes a slight abnormality that has ‘no more than a minimal effect on an 

individuals [sic] ability to work.’” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) 

(citation omitted). 

The ALJ based her finding that Sallee’s interstitial cystitis was not severe on the 

fact that Sallee was diagnosed with the condition in 2000 and “[t]here is nothing on the 

record to indicate that [her] Interstitial Cystitis has worsened since the initial diagnosis.” 

(A.R. 26.) The ALJ concluded, therefore, that this condition “ha[d] no more than minimal 

limitation on her ability to perform basic work activities.” (Id.) 
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Sallee argues that the ALJ failed to identify any evidentiary support in the record 

for these conclusions and that the record shows her interstitial cystitis condition did, in fact, 

get worse following her 2000 diagnosis. (Doc. 15 at 20-21.) 

The Court agrees with Sallee. The ALJ failed to cite the record in coming to her 

conclusion that the condition hadn’t worsened since 2000, and Dr. Karlovsky wrote in his 

June 9, 2016 opinion letter that “[f]ecal incontinence has recently become more of a 

concern.” (A.R. 1760, emphasis added.) The ALJ later gave Dr. Karlovskly’s opinion 

“partial weight.” (A.R. 30-31.) Furthermore, although Sallee testified at the hearing that 

she was diagnosed in 2000, she also testified that she now has bowel accidents and these 

“seem[] to be getting more common now.” (A.R. 49.) She further testified that she now 

uses the restroom at least thirteen times a day, at least five of which are bowel movements. 

(A.R. 60.) Because the vocational expert testified there would be no work available for an 

individual who needed unscheduled breaks throughout the day (A.R. 65-66), and Sallee’s 

interstitial cystitis symptoms may have required such breaks, there was not substantial 

evidence supporting the ALJ’s conclusion that this condition had no more than a minimal 

effect on Sallee’s ability to work. 

An error at step two is harmless if the ALJ extensively discusses the condition at 

step four. Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). As discussed below, the 

ALJ did not properly discredit Sallee’s testimony regarding her interstitial cystitis during 

step four. Therefore, this error was not harmless. 

II. Whether the ALJ Erred in Rejecting Sallee’s Symptom Testimony 

A. Legal Standard

“In assessing the credibility of a claimant’s testimony regarding subjective pain or 

the intensity of symptoms, the ALJ engages in a two-step analysis.” Molina, 674 F.3d at 

1112. “First, the ALJ must determine whether there is objective medical evidence of an 

underlying impairment which could reasonably be expected to produce the pain or other 

symptoms alleged.” Id. (citations and internal quotation marks omitted). The ALJ found 

that Sallee had satisfied this first step. (A.R. 29 [“I find that the claimant’s medically 
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determinable impairments could reasonably be expected to cause the alleged 

symptoms . . . .”].) 

If the first step is satisfied, and “there is no evidence of malingering, then the ALJ 

must give specific, clear and convincing reasons in order to reject the claimant’s testimony 

about the severity of the symptoms.” Molina, 674 F.3d at 1112 (citations and internal 

quotation marks omitted). Such testimony can’t be rejected simply because it can’t be 

verified by objective medical evidence. 20 C.F.R. § 404.1529(c)(2) (“[W]e will not reject 

your statements about the intensity and persistence of your pain or other symptoms or about 

the effect your symptoms have on your ability to work solely because the available 

objective medical evidence does not substantiate your statements.”). Here, the ALJ did not 

find there was evidence of malingering, so she was required to provide “specific, clear and 

convincing reasons” to reject Sallee’s testimony. 

“A finding that a claimant’s testimony is not credible must be sufficiently specific 

to allow a reviewing court to conclude the adjudicator rejected the claimant’s testimony on 

permissible grounds and did not arbitrarily discredit a claimant’s testimony regarding 

pain.” Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (citation and quotation 

marks omitted). “General findings are insufficient; rather, the ALJ must identify what 

testimony is not credible and what evidence undermines the claimant’s complaints.” 

Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014) (citation omitted); see also Holohan 

v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001) (“[T]he ALJ must specifically identify 

the testimony she or he finds not to be credible and must explain what evidence undermines 

the testimony.”). “[P]roviding a summary of medical evidence in support of a residual 

functional capacity finding 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. 

B. Sallee’s Testimony

With respect to her bipolar disorder, Sallee testified that it causes fogginess and 

spaciness and makes her anxious and impatient. (A.R. 49, 51, 57.) Additionally, she 

claimed that it causes lows about once a month lasting for two weeks where she “get[s] 
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that sinking of [her] gut and [she] [doesn’t] want to get out of bed.” (A.R. 57.) With 

respect to her interstitial cystitis, Sallee testified that she “ha[s] pain in [her] pelvic area 

and mostly in [her] urethra where it feels like [she] ha[s] a urinary tract infection all the 

time.” (A.R. 49.) She also claimed to have flares of pain “three times a week or so” that 

would last for a “couple of days” and would prevent her from going about her daily 

activities. (A.R. 62-63.) She further testified that the condition now causes her to have 

bowel accidents, and she typically uses the restroom around thirteen times a day, at least 

five of which are bowel movements. (A.R. 49, 60.) 

Finally, with respect to her overall capacity to work, Sallee testified that she would 

be unable to do the jobs that she had done in the past because “[t]hey’re just way to[o] 

overwhelming for [her]” and the jobs “push[ed] her over the edge.” (A.R. 55.) 

C. Analysis

As explained below, although the ALJ provided somewhat specific reasons for 

rejecting Sallee’s testimony as it pertained to the symptoms of her bipolar disorder, those 

reasons were not sufficiently convincing. Additionally, the ALJ did not meaningfully 

address Sallee’s testimony concerning the symptoms arising from her interstitial cystitis 

(likely because the ALJ had previously determined this impairment was not severe). These 

errors were not harmless. 

As an initial matter, Sallee is incorrect in her assertion (Doc. 15 at 12) that the ALJ 

simply offered a “boilerplate finding” in support of the decision to reject her symptom 

testimony, at least as it pertains to her bipolar disorder. Although the ALJ’s order does 

contain a sentence that might be construed as boilerplate (A.R. 29), that sentence is 

followed by a fairly detailed discussion of why the ALJ concluded Sallee wasn’t credible 

on this issue. Specifically, the ALJ relied upon (1) evidence that Sallee’s condition had 

improved after she started taking bipolar medication (A.R. 29), (2) the incongruity of Sallee 

being willing to seek full-time employment but being unwilling to consider jobs requiring 

night or weekend work (A.R. 29-30), and (3) the fact that Sallee had been able to work at 

various jobs since her bipolar diagnosis (A.R. 30). 
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Nevertheless, Sallee is correct that these proffered reasons were insufficiently 

convincing—even under the deferential standard of review applicable in this context—to 

justify the rejection of her testimony. For example, in support of the conclusion that 

Sallee’s bipolar disorder had improved since she began receiving treatment, the ALJ cited 

NP Susan Anderson’s letter. (A.R. 29.) That letter, however, provided: “[Sallee’s] 

condition is fragile. Though she has improved with treatment she is unable to work because 

of her psychiatric conditions.” (A.R. 899.) This letter tends to support Sallee’s position, 

not clearly and convincingly contradict it. And although there are other documents in the 

record that show Sallee’s symptoms improved once she started taking medications (A.R. 

1002, 1026), these documents are insufficient to discredit Sallee’s testimony about the 

severity of her symptoms. The Ninth Circuit has noted that, with respect to mental health 

conditions, “it is error to reject a claimant’s testimony merely because symptoms wax and 

wane in the course of treatment,” as “[c]ycles of improvement and debilitating symptoms 

are a common occurrence.” Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014); cf.

Holohan, 246 F.3d at 1205 (“That a person who suffers from severe panic attacks, anxiety, 

and depression makes some improvement does not mean that the person’s impairments no 

longer seriously affect her ability to function in a workplace.”). Tidwell v. Apfel, 161 F.3d 

599, 601 (9th Cir. 1998), is inapposite, as there the claimant told her physician that 

medication was helping with her physical pain and there was no evidence showing the 

claimant was subsequently treated for this pain. Here, Sallee continued seeing providers 

for her bipolar disorder even after telling them that her symptoms improved. The ALJ also 

cited Sallee’s hearing testimony regarding her improvement in some symptoms of bipolar 

disorder, but because the ALJ didn’t connect this to a discrediting of any specific testimony 

regarding the debilitating effects of the bipolar disorder, this cannot constitute a clear and 

convincing reason to reject Sallee’s testimony. 

The ALJ also found that Sallee’s attempts to look for full-time employment 

following her bipolar diagnosis were inconsistent with her disability claims. (A.R. 29-30 

(citing A.R. 1109).) But looking for work is not a convincing reason to reject the claimant’s 
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symptom testimony, as it doesn’t indicate the claimant can actually work. Cf. Lewis v. 

Apfel, 236 F.3d at 516 (“Lewis’s willingness to work more hours was not substantial 

evidence that he actually could work for twenty hours per week on a sustained basis.”); 

Lester v. Chater, 81 F.3d 821, 833 (9th Cir. 1995), as amended (Apr. 9, 1996) (“Occasional 

symptom-free periods—and even the sporadic ability to work—are not inconsistent with 

disability.”); Lambert v. Berryhill, 896 F.3d 768, 778-79 (7th Cir. 2018) (“[A] claimant’s 

desire to work is not evidence that the claimant has embellished his limitations . . . . [T]he 

Social Security system is designed to encourage everyone who can work to do so . . . [a]nd 

a person who is not certain whether he will qualify for Social Security disability surely has, 

and should have, a strong incentive to keep looking for work and to pursue unemployment 

compensation as an interim source of income.”). The one case cited by the Commissioner 

to support the ALJ’s decision, Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 

(9th Cir. 2009), is inapposite, as there the ALJ cited as one of many reasons for discounting 

the claimant’s testimony that the claimant had recently worked as a caregiver for two years 

and was looking for work. 

Finally, the ALJ also noted that Sallee’s “testimony that she ha[d] worked at various 

jobs since the alleged onset date” was inconsistent with her claims of being completely 

disabled and unable to work. (A.R. 30.) But these jobs were “help[ing] [her] neighbor 

water his plants for . . . $10 every week or two weeks” or “[s]ecret shopping online” or 

doing online customer service forms, and Sallee clarified that she did those online forms 

only “a few times but that started getting [her] stressed out.” (A.R. 48.) “If a claimant is 

able to spend a substantial part of his day engaged in pursuits involving the performance 

of physical functions that are transferable to a work setting, a specific finding as to this fact 

may be sufficient to discredit a claimant’s allegations.” Morgan v. Comm’r of Soc. Sec. 

Admin., 169 F.3d 595, 600 (9th Cir. 1999). Here, there is no evidence in the record showing 

that Sallee spent a substantial part of her day doing these activities; to the contrary, Sallee 

stated she watered the plants only once every week or two and stopped doing the online 

tasks almost immediately after trying them. 
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For the foregoing reasons, the Court concludes the ALJ unjustifiably rejected 

Sallee’s testimony concerning the symptoms of her bipolar disorder.1

 

Additionally, the ALJ disregarded Sallee’s testimony concerning the symptoms of 

her interstitial cystitis. This is a key issue in the case because Sallee testified that this 

condition typically causes her to use the restroom around thirteen times a day, at least five 

of which are bowel movements, and the vocational specialist acknowledged that Sallee 

wouldn’t be able to perform the jobs of janitor or dishwasher (the two jobs identified during 

step five of the ALJ’s analysis) or any other jobs if she required “unscheduled breaks 

throughout the workday.” (A.R. 65-66.) The ALJ’s order does not address Sallee’s 

testimony on this point with any specificity2

 and thus can’t be said to contain “specific, 

clear and convincing reasons” for rejecting it. 

III. Scope of Remand 

“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). This applies particularly “[i]f additional 

proceedings can remedy defects in the original administrative proceeding.” Garrison, 759 

F.3d at 1019 (citation omitted). But there is an exception to this rule, known as the “creditas-true” rule, under which the court may remand with instructions to calculate and award 

benefits. For this rule to apply, a three-part test must be 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. 

 

1

 The ALJ also recited all of the opinion evidence in the record in determining that Sallee’s symptom testimony was not consistent with the record (A.R. 30-32), but as noted 

above, “providing a summary of medical evidence in support of a residual functional capacity finding 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. 

2

 Although the ALJ briefly addressed Sallee’s interstitial cystitis in the portion of the order analyzing step two (A.R. 26), this analysis doesn’t specifically acknowledge or refute Sallee’s testimony concerning the frequency and unpredictability of her bathroom visits. 
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Id. at 1020. 

Here, the credit-as-true rule isn’t satisfied because further administrative 

proceedings would serve a useful purpose. In particular, the ALJ should conduct a more 

comprehensive analysis of whether Sallee’s interstitial cystitis qualifies as a severe 

impairment under step two and a correspondingly more comprehensive analysis of her 

symptom testimony on that issue. The resolution of those issues may affect how much 

weight the ALJ decides to give the opinions of the state agency consultants, as well as the 

ALJ’s consideration of whether there are jobs that exist in significant numbers in the 

national economy that Sallee can perform. 

Accordingly, 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 case. 

 Dated this 19th day of February, 2019.