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WO

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Dolores Eileen Elgrably, 

Plaintiff, 

v. 

Commissioner of Social Security 

Administration, 

Defendant. 

No. CV-17-04760-PHX-JAT

ORDER 

 Pending before the Court is Plaintiff Dolores Eileen Elgrably’s (“Plaintiff”) appeal 

from the Social Security Commissioner’s (the “Commissioner”) denial of her application 

for a period of disability, disability insurance benefits, and Supplemental Security Income 

(“SSI”) under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401 et seq., 

1381 et seq. (Doc. 1 at 1–4). The Court now rules on Plaintiff’s appeal. 

I. BACKGROUND 

 The parties are familiar with the background information in this case, and it is 

summarized in the ALJ’s decision. (See Doc. 9-3 at 23–32). Accordingly, the Court will 

reference the background only as necessary to the analysis below. 

II. LEGAL STANDARD 

 The ALJ’s decision to deny disability benefits may be overturned “only when the 

ALJ’s findings are based on legal error or not supported by substantial evidence in the 

record.” Benton ex rel. Benton v. Barnhart, 331 F.3d 1030, 1035 (9th Cir. 2003). 

“‘Substantial evidence’ means more than a mere scintilla, but less than a preponderance, 
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i.e., such relevant evidence as a reasonable mind might accept as adequate to support a 

conclusion.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citing 

Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)). 

 “The inquiry here is whether the record, read as a whole, yields such evidence as 

would allow a reasonable mind to accept the conclusions reached by the ALJ.” Gallant v. 

Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (citation omitted). “Where evidence is 

susceptible of more than one rational interpretation, it is the ALJ’s conclusion which 

must be upheld; and in reaching his findings, the ALJ is entitled to draw inferences 

logically flowing from the evidence.” Gallant, 753 F.2d at 1453 (citations omitted); see

Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). This is 

because “[t]he trier of fact and not the reviewing court must resolve conflicts in the 

evidence, and if the evidence can support either outcome, the court may not substitute its 

judgment for that of the ALJ.” Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992); 

see Benton, 331 F.3d at 1035 (“If the evidence can support either outcome, the 

Commissioner’s decision must be upheld.”).

 The ALJ is responsible for resolving conflicts in medical testimony, determining 

credibility, and resolving ambiguities. See Andrews v. Shalala, 53 F.3d 1035, 1039 (9th 

Cir. 1995). Thus, if on the whole record before the Court, substantial evidence supports 

the ALJ’s decision, the Court must affirm it. See Hammock v. Bowen, 879 F.2d 498, 501 

(9th Cir. 1989); see also 42 U.S.C. § 405(g). On the other hand, the Court “may not 

affirm simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue, 495 

F.3d 625, 630 (9th Cir. 2007) (quotation omitted). 

 Notably, the Court is not charged with reviewing the evidence and making its own 

judgment as to whether Plaintiff is or is not disabled. Rather, it is a “fundamental rule of 

administrative law” that a reviewing court, in dealing with a judgement which an 

administrative agency alone is authorized to make, may only make its decision based 

upon evidence discussed by the ALJ. Sec. & Exch. Comm’n v. Chenery Corp., 332 U.S. 

194, 196 (1947). Thus, the Court’s inquiry is constrained to the reasons asserted by the 
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ALJ and the evidence relied upon in support of those reasons. See Connett v. Barnhart, 

340 F.3d 871, 874 (9th Cir. 2003); Frank v. Schultz, 808 F.3d 762, 764 (9th Cir. 2015). 

Similarly, when challenging an ALJ’s decision, “issues which are not specifically and 

distinctly argued and raised in a party’s opening brief are waived.” Arpin v. Santa Clara 

Valley Trans. Agency, 261 F.3d 912, 919 (9th Cir. 2001) (citing Barnett v. U.S. Air, Inc., 

228 F.3d 1105, 1110 n. 1 (9th Cir. 2000) (en banc), vacated and remanded on other 

grounds, 535 U.S. 391 (2002)); see also Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 

1219, 1226 n. 7 (9th Cir. 2009) (applying the principle to Social Security appeals). 

Accordingly, the Court “will not manufacture arguments for an appellant.” Arpin, 261 

F.3d at 919 (citation omitted). 

A. Definition of a Disability 

 A claimant can qualify for Social Security disability benefits only if she can show 

that, among other things, she is disabled. 42 U.S.C. § 423(a)(1)(E). A disability is defined 

as an “inability to engage in any substantial gainful activity by reason of any medically 

determinable physical or mental impairment which can be expected to result in death or 

which has lasted or can be expected to last for a continuous period of not less than 12 

months.” Id. § 423(d)(1)(A). 

 A person is disabled only if her “physical or mental impairment or impairments 

are of such severity that [she] is not only unable to do [her] previous work but cannot, 

considering [her] age, education, and work experience, engage in any other kind of 

substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A). 

B. The Five-Step Evaluation Process 

 The Social Security regulations set forth a five-step sequential process for 

evaluating disability claims. 20 C.F.R. § 404.1520(a)(4); see also Reddick v. Chater, 157 

F.3d 715, 721 (9th Cir. 1998). A finding of “not disabled” at any step in the sequential 

process will end the inquiry. 20 C.F.R. § 404.1520(a)(4). The claimant bears the burden 

of proof at the first four steps, but the burden shifts to the Commissioner at the final step. 

Reddick, 157 F.3d at 721. The five steps are as follows: 
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 First, the ALJ determines whether the claimant is engaged in “substantial gainful 

activity.” 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not disabled. Id. 

 At the second step, the ALJ next considers whether the claimant has a “severe 

medically determinable physical or mental impairment.” 20 C.F.R. § 404.1520(a)(4)(ii). 

If the claimant does not have a severe impairment, then the claimant is not disabled. Id. § 

404.1520(c). A “severe impairment” is one that “significantly limits [the claimant’s] 

physical or mental ability to do basic work activities.” Id. Basic work activities are the 

“abilities and aptitudes to do most jobs,” such as lifting, carrying, reaching, 

understanding, carrying out and remembering simple instructions, responding 

appropriately to co-workers, and dealing with changes in routine.” Id. § 404.1521(b). 

Additionally, unless the claimant’s impairment is expected to result in death, “it must 

have lasted or must be expected to last for a continuous period of at least 12 months” for 

the claimant to be found disabled. Id. § 404.1509. 

 Third, having found a severe impairment, the ALJ then considers the severity of 

the claimant’s impairment. Id. § 404.1520(a)(4)(iii). This requires the ALJ to determine if 

the claimant’s impairment “meets or equals” one of the impairments listed in the 

regulations. Id. If so, then the ALJ will find that the claimant is disabled. Id. If the 

claimant’s impairment does not meet or equal a listed impairment, then the ALJ will 

assess the claimant’s “residual functional capacity based on all the relevant medical and 

other evidence in [the claimant’s] case record.” Id. § 404.1520(e). In assessing the 

claimant’s “residual functional capacity” (“RFC”), the ALJ will consider the claimant’s 

“impairment(s), and any related symptoms, such as pain, [that] may cause physical and 

mental limitations that affect what [the claimant] can do in a work setting. A claimant’s 

RFC is the most the claimant can still do despite the effects of all the claimant’s 

medically determinable impairments, including those that are not severe. Id. § 

404.1545(a)(1). 

 At step four, the ALJ determines whether, despite her impairments, the claimant 

can still perform “past relevant work.” Id. § 404.1520(a)(4)(iv). To do this, the ALJ 
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compares the claimant’s residual function capacity with the physical and mental demands 

of the claimant’s past relevant work.” Id. § 404.1520(f). If the claimant can still perform 

her past relevant work, the ALJ will find that the claimant is not disabled. Id. § 

1520(a)(iv). Otherwise, the ALJ proceeds to the final step. 

 At the fifth and final step, the ALJ considers whether the claimant “can make an 

adjustment to other work” that exists in the national economy. Id. § 404.1520(a)(4)(v). In 

making this determination, the ALJ considers the claimant’s RFC, age, education, and 

work experience. Id. § 404.1520(g)(1). If the ALJ finds that the claimant can make an 

adjustment to other work, then the claimant is not disabled. Id. § 404.1520(a)(4)(v).

However, if the ALJ finds that the claimant cannot make an adjustment to other work, 

then the claimant is disabled. Id. 

 In evaluating the claimant’s disability under this five-step process, the ALJ must 

consider all evidence in the case record. Id. § 404.1520(a)(3). This includes medical 

opinions, records, self-reported symptoms, and third-party reporting. See id. §§ 404.1527; 

404.1529; SSR 06-3p, 71 Fed. Reg. 45593-03 (S.S.R. Aug. 9, 2006). 

 C. The ALJ’s Evaluation under the Five Step Process 

 At step one of the sequential evaluation process, the ALJ found that Plaintiff has 

not engaged in substantial gainful activity since May 1, 2013, the alleged onset date. 

(Doc. 9-3 at 25). In step two, the ALJ ascertained that Plaintiff has the following severe 

impairments: “degenerative disc disease and spondylosis of the lumbar spine; 

fibromyalgia; brachial neuritis; and obesity, which is severe in combination with the 

other impairments.” (Id.). Under the third step, the ALJ determined that the severity of 

Plaintiff’s impairments, singly and in combination, did not meet or medically equal the 

severity of the impairments listed in the Social Security Regulations. (Id. at 27). 

 Before moving on to step four, the ALJ conducted an RFC determination after 

consideration of the entire record. (Id.). The ALJ found that Plaintiff “has the residual 

functional capacity to perform a range of work at the light exertional level.” (Id.). 

Particularly, Plaintiff: 
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. . . can lift and carry 20 pounds occasionally and 10 pounds 

frequently, stand and/or walk about four hours and sit six 

hours in an eight-hour workday. She can frequently balance, 

crouch, and occasionally stoop, kneel, crawl, and climb ramps 

or stairs, but should never climb ladders, ropes, or scaffolds. 

The [Plaintiff] is capable of frequently handling and 

occasionally reaching overhead with the bilateral upper 

extremities. She must also avoid vibration and hazards, such 

as moving machinery and unprotected heights. In addition, 

due to pain and the side effects of narcotic pain medication, 

she is limited to performing only simple, routine tasks. 

(Id.). 

 At step four, the ALJ found that Plaintiff is unable to perform any past relevant 

work. (Id. at 30). Finally, the ALJ concluded at step five that based on Plaintiff’s RFC, 

age, education, and work experience, Plaintiff could perform a significant number of jobs 

existing in the national economy, including ticket taker, order caller, and call out 

operator. (Id. at 30–31). Consequently, the ALJ concluded that Plaintiff has not been 

under a disability under the Social Security Act from May 1, 20131

 through June 2, 2016, 

the date of the ALJ’s decision. (Id. at 31). 

III. ANALYIS 

 Plaintiff claims that the ALJ’s denial of her applications for Social Security 

Disability Insurance Benefits and SSI was “erroneous,” “not supported by substantial 

evidence,” and contrary to the evidence setting forth her inability to engage in substantial 

gainful employment. (Doc. 1 ¶¶ 13–14). In support of this contention, Plaintiff makes 

four main arguments for why the ALJ’s decision should be reversed for an award of 

benefits, or, alternatively, remanded for a new hearing. (Doc. 10 at 23). Specifically, 

Plaintiff asserts that: 1) the ALJ improperly weighed the medical opinion evidence; 2) the 

ALJ improperly evaluated Plaintiff’s testimony; 3) the ALJ improperly determined 

Plaintiff’s RFC; and 4) the Appeals Council failed to properly consider new evidence. 

 1

 Plaintiff filed an application for a period of disability and disability insurance benefits 

protectively on March 11, 2014, and filed an application for supplemental security income protectively on March 17, 2014. (Doc. 9-3 at 23). In both applications, Plaintiff alleged disability beginning May 1, 2013. (Id.). 
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(Doc. 10 at 1). 

A. Whether the ALJ Improperly Weighed the Medical Opinion Evidence 

 Plaintiff first argues that the ALJ erred in giving “little weight” to the opinions of 

Dr. Soni and Dr. Djurisic, two of Plaintiff’s treating physicians. (Doc. 10 at 15). 

 In social security cases, there are three types of medical opinions: “those from 

treating physicians, examining physicians, and non-examining physicians.” Valentine v. 

Comm’r, 574 F.3d 685, 692 (9th Cir. 2009) (citation omitted). “The medical opinion of a 

claimant’s treating physician is given ‘controlling weight’ so long as it ‘is well-supported 

by medically acceptable clinical and laboratory diagnostic techniques and is not 

inconsistent2

 with the other substantial evidence in [the claimant’s] case record.’” Trevizo 

v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (quoting 20 C.F.R. § 404.1527(c)(2)); see 

also SSR 96-2P, 1996 WL 374188, at *1 (S.S.A. July 2, 1996) (stating that a wellsupported opinion by a treating source which is not inconsistent with other substantial 

evidence in the case record “must be given controlling weight; i.e. it must be adopted”). 

 ALJs generally give more weight to medical opinions from treating physicians 

“since these sources are likely to be the medical professionals most able to provide a 

detailed, longitudinal picture of [the claimant’s] medical impairment(s) and may bring a 

unique perspective to the medical evidence that cannot be obtained from the objective 

medical findings alone or from reports of individual examinations . . . .” 20 C.F.R. §§ 

404.1527(c)(2), 416.927(c)(2). Thus, the opinion of a treating source is generally given 

more weight than the opinion of a doctor who does not treat the claimant. Lester v. 

Chater, 81 F.3d 821, 830 (9th Cir. 1995). Should the ALJ decide not to give the treating 

physician’s medical opinion controlling weight, the ALJ must weigh it according to 

factors such as the nature, extent, and length of the physician-patient relationship, the 

frequency of evaluations, whether the physician’s opinion is supported by and consistent 

 2

 Under SSR 96-2P, “not inconsistent” is “a term used to indicate that a well-supported treating source medical opinion need not be supported directly by all of the other evidence (i.e., it does not have to be consistent with all the other evidence) as long as there is no other substantial evidence in the case record that contradicts or conflicts with 

the opinion.” SSR 96-2P, 1996 WL 374188, at *3 (S.S.A. July 2, 1996). 
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with the record, and the specialization of the physician. Trevizo, 871 F.3d at 676; see 20 

C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). 

 Although a “treating physician’s opinion is entitled to ‘substantial weight,’” Bray, 

554 F.3d at 1228 (citation omitted), it is “not binding on an ALJ with respect to the 

existence of an impairment or the ultimate determination of disability.” Batson, 359 F.3d 

at 1195. Rather, an ALJ may reject the uncontradicted opinion of a treating physician by 

stating “clear and convincing reasons that are supported by substantial evidence.” Ryan v. 

Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (citation omitted). “If a 

treating or examining doctor’s opinion is contradicted by another doctor’s opinion, an 

ALJ may only reject it by providing specific and legitimate reasons that are supported by 

substantial evidence.” Id. (citation omitted); see also SSR 96-2P, at *5 (“[T]he notice of 

the determination or decision must contain specific reasons for the weight given to the 

treating source’s medical opinion, supported by the evidence in the case record, and must 

be sufficiently specific to make clear to any subsequent reviewers the weight the 

adjudicator gave to the treating source’s medical opinion and the reasons for that 

weight.”). However, “[t]he ALJ need not accept the opinion of any physician, including a 

treating physician, if that opinion is brief, conclusory, and inadequately supported by 

clinical findings.” Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). 

 Here, the ALJ states that the opinions of Dr. Soni and Dr. Djurisic are 

“inconsistent with the medical evidence and unsupported by clinical findings on 

examination.” (Doc. 9-3 at 29). Specifically, the ALJ believes the opinions of Dr. Soni 

and Dr. Djurisic “are inconsistent with reports showing a normal gait and stance . . . with 

full motor strength in the bilateral extremities,” and “inconsistent with a December 2015 

report showing no back pain.” (Id.). 

 The record indicates that Dr. Djurisic was a treating physician who saw Plaintiff at 

least 14 times in the time spanning from March 1, 2016 through April 13, 2015. (See

Doc. 9-8 at 72, 75, 78, 81, 84, 87, 90, 93, 97, 100, 103, 106, 109, 112). Dr. Soni, another 

treating physician, saw Plaintiff at least nine times according to the record. (See Doc. 9-8 
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at 3, 126, 129, 131, 134, 136, 139, 142, 144). In contrast, the record shows that Dr. Yuk 

only saw Plaintiff six times, (see Doc. 9-8 at 16, 21, 26, 30, 35, 41), and Joseph Maidi, 

PA-C, on just four occasions, (see Doc. 9-8 at 115, 119, 123, 146). Despite the fact that 

Plaintiff saw Mr. Maidi and Dr. Yuk on far fewer occasions, the ALJ gives more weight 

to the findings of these professionals than to those of Dr. Soni and Dr. Djurisic. (See Doc. 

9-3 at 28–29). As the opinions of Dr. Soni and Dr. Djurisic are controverted by the 

clinicial findings of two other treating professionals, the Court examines whether the 

ALJ’s decision to afford Dr. Soni’s and Dr. Djurisic’s opinions little weight is reinforced 

with “specific and legitimate reasons that are supported by substantial evidence.” Ryan, 

528 F.3d at 1198. 

 The Court finds that the ALJ has not offered “specific and legitimate reasons” for 

giving little weight to the opinions of Dr. Soni and Dr. Djurisic. Ryan, 528 F.3d at 1198. 

Based on the ALJ’s opinion, it is unclear to the Court how, specifically, Dr. Soni’s 

opinion is inconsistent with the December 2015 report showing no back pain, (Doc. 9-8 

at 79). As a preliminary matter, the Court notes that such a broad statement, without any 

examination of how the clinical evidence conflicts with the physician’s opinion, does not 

constitute a “specific and legitimate reason” to reject Dr. Soni’s opinion. See Garrison v. 

Colvin, 759 F.3d 995, 1012–13 (9th Cir. 2014) (“[A]n ALJ errs when he rejects a medical 

opinion or assigns it little weight while doing nothing more than ignoring it, asserting 

without explanation that another medical opinion is more persuasive, or criticizing it with 

boilerplate language that fails to offer a substantive basis for his conclusion.”); Embrey v. 

Bowen, 849 F.2d 418, 421 (9th Cir. 1988) (“To say that medical opinions are not 

supported by sufficient objective findings or are contrary to the preponderant conclusions 

mandated by the objective findings does not achieve the level of specificity our prior 

cases have required, even when the objective factors are listed seriatim.”). 

 Plaintiff’s case is analogous to Embrey v. Bowen. In Embrey, the ALJ’s opinion 

reviewed the medical evidence, but concluded only that the treating physicians’ opinions 

of total disability were “unsupported by sufficient objective findings and contrary to the 
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preponderant conclusions mandated by those objective findings.” Embrey, 849 F.2d at 

421. Rather than set forth sufficiently specific reasons for disregarding the opinions of the 

treating physicians nor explain why he disagreed with the treating physicians’ 

conclusions, the ALJ “merely states that the objective factors point toward an adverse 

conclusion and makes no effort to relate any of these objective factors to any of the 

specific medical opinions and findings he rejects. This approach is inadequate.” Id. at 

422. Accordingly, the Ninth Circuit found that the ALJ’s failure to provide “detailed, 

reasoned, and legitimate rationales for disregarding the physicians’ findings” of disability 

warranted remand for proper consideration of the physicians’ evidence. Id. Likewise, 

here, the ALJ’s opinion does review the medical evidence, but fails to set forth more than 

her own conclusion that Dr. Soni’s opinion is inconsistent with the December 2015 report 

showing no back pain. See id. at 421–22. Accordingly, the ALJ here, as in Embrey, has 

not met her burden of setting out “a detailed and thorough summary of the facts and 

conflicting clinical evidence, stating [her] interpretation thereof, and making findings.” 

Id. at 421(citation omitted). 

 As to Dr. Djurisic, her opinion states that Plaintiff suffers from chronic back pain, 

(Doc. 9-8 at 65), which the ALJ found inconsistent with Dr. Djurisic’s own treatment 

notes from December 4, 2015 indicating that Plaintiff was not experiencing back pain, 

(Doc. 9-8 at 79). (See Doc. 9-3 at 29). In general, the Court notes that it is true that 

inconsistency between a treating physician’s opinion and treatment notes can provide a 

specific, legitimate reason for the ALJ to give a treating physician’s opinion less weight. 

See Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (“The incongruity 

between [the treating physician’s] Questionnaire responses and her medical records 

provides an additional specific and legitimate reason for rejecting [the treating 

physician’s] opinion of [the plaintiff’s] limitations.”); Connett, 340 F.3d at 875 (holding 

that the ALJ provided substantial evidence for finding that the treating physician’s 

“extensive conclusions” regarding the plaintiff’s limitations were “not supported by his 

own treatment notes” nor the recommendations of another physician such that the ALJ 
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could discredit treating physician’s testimony); Saelee v. Chater, 94 F.3d 520, 522 (9th 

Cir. 1996) (holding that the ALJ was entitled to reject a treating physician’s opinion 

because, among other things, his report varied from his treatment notes). 

 Nevertheless, this case is distinguishable from Tommasetti, Connett, and Saelee

because Dr. Djurisic’s conclusion in her opinion that Plaintiff suffers from chronic back 

pain, (Doc. 9-8 at 65), is actually consistent with the overwhelming majority of Plaintiff’s 

medical records which indicate that Plaintiff frequently alerted various medical 

professionals of her back pain. (See Doc. 9-8 at 9, 16, 38, 41, 47, 48, 51–64, 115–17, 

119–121, 129, 136–37, 139–140). In fact, the ALJ seems to point to the singular place in 

the record that Plaintiff indicated that she was not experiencing back pain. Therefore, 

unlike in Tommasetti, it is clear that Dr. Djurisic’s conclusion that Plaintiff suffers from 

chronic back pain is supported by Plaintiff’s medical records. See Tommasetti, 533 F.3d 

at 1041 (noting that the ALJ found the treating physician’s Questionnaire responses to be 

inconsistent with the record because the “ultimate conclusions from [the treating 

physician’s] Questionnaire . . . ‘did not mesh with [the plaintiff’s] objective data or 

history.’”). Moreover, unlike in Connett, Dr. Djurisic’s treatment notes consistently 

acknowledge Plaintiff’s history of chronic back pain, (see Doc. 73, 75, 78, 81, 85, 88, 90, 

94, 98, 101, 104, 107, 110, 112–13), before concluding that Plaintiff suffers from chronic 

back pain. See Connett, 340 F.3d at 875 (indicating that the treating physician’s notes 

nowhere indicate reasons why the treating physician concluded that the plaintiff “would 

be limited to standing for only ten minutes or lifting only ten pounds”). 

 Regarding the ALJ’s finding that the opinions of Dr. Soni and Dr. Djurisic are 

inconsistent with Plaintiff’s denial of back pain at her appointment in December 2015, 

Plaintiff claims that “[i]t is not plausible to conclude that [she] was pain free” since she 

was on Oxycodone, a heavy narcotic pain reliever, at the time. (Doc. 10 at 16). Further, 

Plaintiff argues that her disability “is due primarily to diffuse muscle pain related to 

fibromyalgia rather than her spinal impairment,” so “her denial of back pain at a single 

visit[] has little relevance to her functioning and level of pain over a prolonged period of 
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time.” (Id.). 

 The Court agrees, as it appears that the ALJ did not “evaluate the record in light of 

the unique characteristics of fibromyalgia.” Revels v. Berryhill, 874 F.3d 648, 667 n. 6 

(9th Cir. 2017) (finding that the ALJ erred in giving no weight to the medical opinion of 

the plaintiff’s treating physician where the ALJ did not provide specific and legitimate 

reasons to reject the treating physician’s opinion and neglected to follow the appropriate 

methodology for weighing a treating physician’s medical opinion). Here, the ALJ failed 

to take into consideration that “the symptoms of fibromyalgia ‘wax and wane,’ and a 

person may have ‘bad days and good days.’” Id. at 663 (quoting SSR 12-2P, 2012 WL 

3104689, at *6 (S.S.A. July 25, 2012)); see also Tully v. Colvin, 943 F. Supp. 2d 1157, 

1165 (E.D. Wash. 2013) (noting that with fibromyalgia, the “symptoms can be worse at 

some times than others”) (citation omitted). That is why the Social Security 

Administration recommends looking at “a longitudinal record whenever possible.” SSR 

12-2P, at *6. Therefore, the Court finds that the ALJ’s statement that the opinions of Dr. 

Soni and Dr. Djurisic are inconsistent with the December 2015 report showing no back 

pain is not a specific and legitimate reason supported by substantial evidence. See Ryan, 

528 F.3d at 1198. 

 Further, the Court finds that the ALJ’s determination that the opinions of Dr. Soni 

and Dr. Djurisic are “inconsistent with reports showing a normal gait and stance . . . with 

full motor strength in the bilateral extremities,” (Doc. 9-3 at 29 (citing Doc. 9-8 at 18, 

36–37, 147)), also does not constitute a “specific and legitimate reason” for giving little 

weight to the opinions of Dr. Soni and Dr. Djurisic. Ryan, 528 F.3d at 1198. Again, the 

ALJ fails to indicate how, specifically, the opinions of Dr. Soni and Dr. Djurisic are 

inconsistent with such reports showing normal gait, stance and extremity strength. As 

noted, supra, without any examination of how the clinical evidence conflicts with these 

physician’s opinions, the ALJ’s broad statement is insufficient to constitute a “specific 

and legitimate reason” to reject the opinions of Dr. Soni and Dr. Djurisic. See Embrey, 

849 F.2d at 421; Garrison, 759 F.3d at 1012–13. Again, the ALJ has not met her burden 
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of setting out “a detailed and thorough summary of the facts and conflicting clinical 

evidence, stating [her] interpretation thereof, and making findings.” Id. While it is true 

that the “ALJ is responsible for resolving conflicts in the medical record,” Carmickle v. 

Comm’r, 533 F.3d 1155, 1164 (9th Cir. 2008) (citation omitted), it is unclear from the 

ALJ’s opinion how Dr. Soni and Dr. Djurisic’s opinions even conflict with the medical 

evidence in this case. See Trevizo, 871 F.3d at 676–77 (holding that the ALJ erroneously 

rejected the treating physician’s opinion where, in lieu of offering a “specific and 

legitimate” reason for discounting the opinion, “the ALJ pointed to nothing in [the 

treating physician’s] treatment notes or elsewhere in the clinical record that contradicted 

the treating physician’s opinion” but merely offered a “conclusory determination that [the 

treating physician’s] opinion was contradicted by his treatment notes”). 

 Not only does the ALJ fail to express how Dr. Soni and Dr. Djurisic’s opinions 

conflict with the medical evidence, but the ALJ also does not indicate how these treating 

physicians’ opinions are unsupported by the objective medical findings. See Batson, 359 

F.3d at 1195 (“an ALJ may discredit treating physicians’ opinions that 

are . . . unsupported by the record as a whole . . . or by objective medical findings”). The 

ALJ does not assert that medical findings of normal gait and stance and full motor 

strength in the bilateral extremities are inconsistent with a fibromyalgia diagnosis—or 

any other diagnosis made by Plaintiff’s treating physicians. (See Doc. 9-3 at 23–32). In 

contrast, Plaintiff claims that the opinions of Dr. Soni and Dr. Djurisic “are based on 

appropriate medical findings consistent with an individual who suffers from disabling 

fibromyalgia.” (Doc. 10 at 16). In support of her contention that findings of abnormal 

gait, stance, and extremity strength are not associated with fibromyalgia, (Doc. 10 at 15), 

Plaintiff cites a Ninth Circuit opinion which states that “a person with fibromyalgia may 

have muscle strength, sensory functions, and reflexes [that] are normal.” Revels, 874 F.3d 

at 663 (citations and internal quotations omitted); see also Satterwaite v. Astrue, 781 F. 

Supp. 2d 898, 912 (D. Ariz. 2011) (“[F]ibromyalgia patients may ‘present no objectively 

alarming signs’ and may ‘manifest normal muscle strength and neurological reactions 
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and have a full range of motion.’”) (citation omitted). 

 In addition to providing only vague conclusions—rather than specific and 

legitimate reasons—for giving little weight to the opinions of Dr. Soni and Dr. Djurisic, 

the ALJ erred by failing to evaluate these treating sources’ opinions according to the 

factors provided in 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). Although the ALJ stated 

that the opinions of Dr. Soni and Dr. Djurisic are “inconsistent with the medical evidence 

and unsupported by clinical findings on examination,” (Doc. 9-3 at 29), the ALJ did not 

consider factors such as the length of the treating relationship, the frequency of 

examination, the nature and extent of the treatment relationship, or the supportability of 

the opinion. 20 C.F.R. §§ 404.1527(c)(2)–(6); 416.927(c)(2)–(6). According to the Ninth 

Circuit, the ALJ’s failure to apply these factors in determining the extent to which the 

opinions should be credited “alone constitutes reversible legal error.” Trevizo, 871 F.3d at 

676 (noting that the ALJ’s outright rejection of the plaintiff’s treating physician’s opinion 

was legally erroneous, even though the ALJ noted that this opinion conflicted with the 

plaintiff’s testimony and was inconsistent with the non-examining physician’s opinion, 

where the ALJ failed to consider the other factors discussed in 20 C.F.R. § 

404.1527(c)(2)–(6)); see also Weiskopf v. Berryhill, 693 F. App’x 539, 541 (9th Cir. 

2017) (“Even when there is substantial evidence contradicting a treating physician’s 

opinion such that it is no longer entitled to controlling weight, the opinion is nevertheless 

‘entitled to deference.’ . . . To determine the amount of deference, the opinion ‘must be 

weighed using all of the factors provided in 20 C.F.R. [§] 404.1527.’”) (citations 

omitted).3

 For the above reasons, the Court finds that the ALJ discounted the opinions of Dr. 

Soni and Dr. Djurisic without providing specific and legitimate reasons supported by 

 3

 Notably, the Ninth Circuit has clarified that “the ALJ is not required ‘to make an express statement that she considered all the factors outlined in 20 C.F.R. § 

404.1527(c).’” Kelly v. Berryhill, 732 F. App’x 558, 562 n. 4 (9th Cir. 2018). Nevertheless, the ALJ must consider these factors, and there is no indication in the ALJ’s 

decision here, as in Kelly, “that the factors were properly considered.” Id. 
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substantial evidence in the record.4 This error is harmful and requires remand. See 

Bowers-Crawford v. Comm’r, 291 F. Supp. 3d 912, 921 (D. Ariz. 2017). 

B. Whether the ALJ Improperly Evaluated Plaintiff’s Testimony 

 Plaintiff next claims that the ALJ improperly evaluated her subjective pain and 

symptom testimony. (Doc. 10 at 19). 

 When assessing the credibility of a claimant’s testimony regarding subjective pain 

or the intensity of his symptoms, the ALJ must engage in a two-step analysis. Molina v. 

Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012). First, as a threshold matter, “the ALJ must 

determine whether the claimant has presented objective medical evidence of an 

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

symptoms alleged.’” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (quoting 

Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991)). Second, if the claimant meets the 

first test, then “the ALJ ‘may not discredit a claimant’s testimony of pain and deny 

disability benefits solely because the degree of pain alleged by the claimant is not 

supported by objective medical evidence.’” Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 

1995) (quoting Bunnell, 947 F.2d at 346–47). Rather, “unless an ALJ makes a finding of 

malingering based on affirmative evidence thereof,” the ALJ may only find the claimant 

not credible by making specific findings supported by the record that provide clear and 

convincing reasons to explain his credibility evaluation. Robbins, 466 F.3d at 883 (citing 

Smolen v. Chater, 80 F.3d 1273, 1283–84 (9th Cir. 1996)); Lingenfelter, 504 F.3d at 

1036. To make specific findings, “the ALJ must identify what testimony is not credible 

and what evidence undermines the claimant’s complaints.” Lester, 81 F.3d at 834. The 

ALJ’s credibility decision may be upheld even if not all of the ALJ’s reasons for rejecting 

the claimant’s testimony are upheld. See Batson, 359 F.3d at 1197. The ALJ may not, 

however, make a negative credibility finding “solely because” the claimant’s symptom 

testimony “is not substantiated affirmatively by objective medical evidence.” Robbins, 

 4

 The Court may only affirm an ALJ’s decision based on grounds stated in the ALJ’s decision. See Trevizo, 871 F.3d at 677 (“[T]he district court erred by developing its own reasons to discount [plaintiff’s treating physician’s] opinion, rather than reviewing the ALJ's reasons for substantial evidence.”). 
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466 F.3d at 883. 

 Although the ALJ found that Plaintiff’s “medically determinable impairments 

could reasonably be expected to cause the alleged symptoms,” the ALJ determined that 

Plaintiff’s “statements concerning the intensity, persistence and limiting effects of these 

symptoms are not entirely consistent with the medical evidence and other evidence in the 

record.” (Doc. 9-3 at 29) (emphasis added). In specific, the ALJ pointed to the fact that 

Plaintiff alleged that she suffered from constant pain which could be “aggravated by 

pretty much anything,” but yet the “the record, including a December 4, 2015 treatment 

report, which showed a musculoskeletal examination was unremarkable with no reports 

of back or extremity pain[,] . . . does not support this.” (Id.). The ALJ also noted that 

although Plaintiff “alleged suffering from significant physical limitations, which preclude 

her from working,” this is “inconsistent with reports showing a normal gait and 

stance . . . with full motor strength in the bilateral extremities.” (Id.). 

 As a preliminary matter, the Court finds the phrase “not entirely consistent” to be 

unclear, as it “sheds no light on the weight that was given to this testimony, or to what 

degree it was, or was not, consistent with any specific evidence in the record.” Fleming v. 

Berryhill, No. 17-CV-04145-RMI, 2018 WL 4586160, at *6 (N.D. Cal. Sept. 24, 2018) 

(finding the ALJ’s assertion that the plaintiff’s statements about the intensity, persistence, 

and limiting effects of his symptoms were “not entirely consistent” with the medical 

evidence in the record to be unclear) (citing Parker v. Astrue, 597 F.3d 920, 921–22 (7th 

Cir. 2010) (“It is not only boilerplate; it is meaningless boilerplate. The statement by a 

trier of fact that a witness’s testimony is ‘not entirely credible’ yields no clue to what 

weight the trier of fact gave the testimony.”)). 

 Notably, the ALJ’s contention that Plaintiff’s statements “are not entirely 

consistent with the medical evidence” is the only reason the ALJ offers for giving 

Plaintiff’s testimony less weight. (Doc. 9-3 at 29).5

 The Court does not doubt that 

 5

 While the ALJ also states that Plaintiff’s testimony is “not entirely consistent” with “other evidence of record,” (Doc. 9-3 at 29), the only evidence she points to in support of this contention is medical evidence. (See Doc. 9-8 at 18, 36–37, 79, 147). 
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“medical evidence is . . . a relevant factor in determining the severity of the claimant’s 

pain and its disabling effects.” Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) 

(citing 20 C.F.R. § 404.1529(c)(2)). Nevertheless, “subjective pain testimony cannot be 

rejected on the sole ground that it is not fully corroborated by objective medical 

evidence.” Id.; see Robbins, 466 F.3d at 883–84 (holding that substantial evidence did not 

support the ALJ’s adverse credibility finding—where the ALJ found the plaintiff’s 

testimony to be “not entirely credible,” in part, because it was “not consistent with or 

supported by the overall medical evidence of record”—because the ALJ may not 

disregard a claimant’s testimony “solely because it is not substantiated affirmatively by 

objective medical evidence”).6

 Accordingly, because the ALJ here gave Plaintiff’s 

testimony less weight solely on the ground that it was “not fully consistent” with the 

medical evidence, the Court finds that substantial evidence does not support the ALJ’s 

findings. Therefore, this case must be remanded to the ALJ to make adequate findings. 

See Light, 119 F.3d at 792–93. 

 Not only does the ALJ’s failure to articulate an acceptable reason for discrediting 

Plaintiff’s testimony alone demonstrate that substantial evidence does not support the 

ALJ’s findings, but the Commissioner’s argument that the “objective medical evidence 

contradicted Plaintiff’s statements concerning her symptoms and limitations” indicates 

that the Commissioner and the ALJ may have a “fundamental misunderstanding of 

fibromyalgia.” Revels, 874 F.3d at 662. Similar to Benecke v. Barnhart, the “ALJ erred 

by ‘effectively requir[ing] ‘objective’ evidence for a disease that eludes such 

measurement.’” Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004) (finding that “the 

ALJ erred in discounting the opinions of [the plaintiff’s] treating physicians and instead 

 6 See also Light v. Soc. Sec. Admin., 119 F.3d 789, 792–93 (9th Cir. 1997) (“In this case, 

the ALJ disbelieved Light because no objective medical evidence supported Light’s testimony regarding the severity of subjective symptoms from which he suffers, 

particularly pain. An ALJ may not discredit a claimant’s subjective testimony on that basis. To find the claimant not credible, the ALJ must rely either on reasons unrelated to 

the subjective testimony (e.g., reputation for dishonesty), on conflicts between his testimony and his own conduct, or on internal contradictions in that testimony. Because the ALJ failed to articulate an acceptable reason . . . for disbelieving Light’s testimony . . . , this case must be remanded to the ALJ to make adequate findings.”). 
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relying on his disbelief of [the plaintiff’s] symptom testimony as well as his 

misunderstanding of fibromyalgia,” despite the fact that each rheumatologist who treated 

the plaintiff diagnosed her with fibromyalgia and the plaintiff “consistently reported 

severe fibromyalgia symptoms”) (quoting Green-Younger v. Barnhart, 335 F.3d 99, 108 

(2d Cir. 2003)). Rather, “[g]iven the nature of fibromyalgia, a claimant’s subjective 

complaints of pain are often the only means of determining the severity of a patient’s 

condition and resulting functional limitations.” Satterwaite, 781 F. Supp. 2d at 912 (citing 

Green-Younger, 335 F.3d at 108); see also Hamilton-Carneal v. Colvin, 670 Fed. App’x. 

613, 613 (9th Cir. 2016) (As fibromyalgia “is diagnosed entirely on the basis of patients’ 

reports of pain and other symptoms,” the ALJ “erred by discounting [the plaintiff’s] 

‘subjective complaints and limitations’ [resulting from fibromyalgia] as ‘simply out of 

proportion to and not corroborated by the objective medical evidence.’”). 

 Further, this case is analogous to Revels v. Berryhill, where the Ninth Circuit held 

that the ALJ’s adverse credibility determination was erroneous, in part, because the ALJ 

failed to provide clear and convincing reasons for rejecting the plaintiff’s testimony. 

Revels, 874 F.3d at 666. In Revels, the plaintiff also suffered from fibromyalgia, and the 

ALJ stated that the plaintiff’s testimony “was undercut by the lack of ‘objective findings’ 

supporting her claims of severe pain.” Id. In support of this, the ALJ highlighted some of 

the plaintiff’s examinations with “mostly normal” results, including an X-ray and MRIs 

of the plaintiff’s neck and back, as well as medical records indicating that the plaintiff 

exhibited “normal muscle strength, tone, and stability, as well as a normal range of 

motion” at several doctor’s appointments.” Id. Nevertheless, the Ninth Circuit determined 

that “the examination results cited by the ALJ are perfectly consistent with debilitating 

fibromyalgia.” Id. 

Likewise, the ALJ here found that Plaintiff’s testimony was “not entirely 

consistent with the medical evidence” by highlighting Plaintiff’s testimony that she 

suffered from constant pain which could be “aggravated by pretty much anything,” but 

yet a treatment report from December 2015 indicated that Plaintiff was not suffering from 
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back pain at that visit. (Doc. 9-3 at 29). Further, the ALJ noted that Plaintiff’s allegations 

that she suffered “from significant physical limitations, which preclude her from 

working,” is “inconsistent with reports showing a normal gait and stance . . . with full 

motor strength in the bilateral extremities.” (Id.). However, as in Revels, the examination 

results which the ALJ relies on to discredit Plaintiff’s testimony are “perfectly consistent 

with debilitating fibromyalgia.” Revels, 874 F.3d at 666; see also Tully, 943 F. Supp. 2d 

at 1164 (finding that the ALJ’s determination that the plaintiff “was not credible because 

the record lacked ‘objective findings’ to support her fibromyalgia related disabling pain” 

was erroneous where medical professionals acknowledged the plaintiff had fibromyalgia 

and the ALJ determined that the plaintiff’s severe impairments included fibromyalgia). 

 Indeed, the bulk of the medical evidence here supports and corroborates Plaintiff’s 

testimony. Multiple physicians have diagnosed Plaintiff with fibromyalgia, (see Doc. 9-8 

at 19, 140), and the ALJ determined that Plaintiff’s severe impairments include 

fibromyalgia, (Doc. 9-3 at 25). Moreover, Plaintiff points out that she has consistently 

had “diffuse chronic pain, multiple tender points consistent with fibromyalgia, and sleep 

problems, which are the hallmarks of disabling fibromyalgia.” (Doc. 10 at 15 (citing 

Revels, 874 F.3d at 656)). The ALJ even acknowledged that Plaintiff “reported 

generalized pain throughout the body . . . and presented with more than 11 positive 

trigger points.” (Doc. 9-3 at 28 (citing Doc. 9-8 at 19, 140, 142)). Notably, eleven or 

more tender points is “the cutoff for a diagnosis of fibromyalgia” under Social Security 

Ruling 12-2P, and “tender-point examinations themselves constitute ‘objective medical 

evidence’ of fibromyalgia.” Revels, 874 F.3d at 663 (citing SSR 12-2P, 2012 WL 

3104689, at *2–3 (S.S.A. July 25, 2012)); see also Rollins, 261 F.3d at 863 (“The most 

clear objective medical indication of fibromyalgia is tenderness at at least eleven of 

eighteen specific points on the body.”). Therefore, the ALJ’s determination that 

Plaintiff’s testimony was “not entirely consistent with the medical evidence,” (Doc. 9-3 at 

29), was erroneous. See Tully, 943 F. Supp. 2d at 1164. 

 In sum, the Court finds that the ALJ failed to provide “specific, clear and 
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convincing reasons” for discrediting Plaintiff’s testimony. Burrell v. Colvin, 775 F.3d 

1133, 1136 (9th Cir. 2014). Accordingly, the ALJ improperly discounted the credibility 

of Plaintiff’s testimony about the severity, intensity, and limiting effects of her 

symptoms. 

 C. Whether the ALJ Improperly Determined Plaintiff’s RFC

 Plaintiff also claims that the ALJ failed to properly determine her RFC. (Doc. 10 

at 14). The Court agrees. Because the ALJ failed to provide clear and convincing reasons 

for giving little weight to the opinions of Dr. Soni and Dr. Djurisic and for finding 

Plaintiff’s testimony not entirely credible, substantial evidence does not support the 

ALJ’s assessment of Plaintiff’s RFC. See Lingenfelter, 504 F.3d at 1040 (“Because the 

ALJ did not provide clear and convincing reasons for excluding [the plaintiff’s] pain and 

symptoms from his assessment of [the plaintiff’s] RFC, substantial evidence does not 

support the assessment.”); see also Robbins, 466 F.3d at 883 (“In determining a 

claimant’s RFC, . . . ‘[c]areful consideration’ [must] be given to any evidence about 

symptoms ‘because subjective descriptions may indicate more severe limitations or 

restrictions than can be shown by medical evidence alone.’”) (quoting SSR 96-8p, 1996 

WL 374184, at *5 (S.S.A. July 2, 1996)); 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3) (In 

assessing a claimant’s RFC, the ALJ “will also consider descriptions and observations of 

[the claimant’s] limitations from [his or her] impairment(s), including limitations that 

result from [the claimant’s] symptoms, such as pain, provided by [the claimant.]”). 

 The Commissioner counters that the ALJ is not required to include opinion 

evidence, such as Plaintiff’s reports and medical opinions, in the RFC finding where 

those opinions have been properly discounted. (Doc. 12 at 7 (citing Batson, 359 F.3d at 

1197) (holding that the “ALJ was not required to incorporate evidence from the opinions 

of [the plaintiff’s] treating physicians, which were permissibly discounted,” in the ALJ’s 

determination of the plaintiff’s RFC)). Nevertheless, the Court found, supra, that the ALJ 

did not properly discount the opinions of Dr. Soni and Dr. Djurisic, nor properly discount 

Plaintiff’s testimony. 
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 Moreover, this case is similar to Payan v. Colvin, where the “ALJ concluded that 

[the plaintiff] suffered from fibromyalgia and other severe impairments, yet she rejected 

(1) the assessment of [the plaintiff’s] treating physician and (2) [the plaintiff’s] subjective 

symptom testimony, because neither was supported by objective medical evidence.” 

Payan v. Colvin, 672 F. App’x 732 (9th Cir. 2016). There, the Ninth Circuit found that 

the ALJ failed to properly assess the plaintiff’s RFC in light of Social Security Ruling 12-

2p, which “precludes the ALJ from rejecting alleged functional limitations based solely 

on a lack of objective medical evidence.” Id. Likewise, the ALJ erred here by rejecting 

Plaintiff’s alleged functional limitations solely based on the ALJ’s determination that 

Plaintiff’s testimony and the opinions of Dr. Soni and Dr. Djurisic were “unsupported by 

clinical findings on examination” and “not entirely consistent with the medical evidence.” 

(Doc. 9-3 at 29). As a result, the Court finds that the ALJ failed to properly assess 

Plaintiff’s RFC, thus requiring remand for further proceedings. 

D. Whether the Appeals Council Failed to Properly Consider New 

Evidence 

 Plaintiff contends that the Appeals Council erred in failing to properly consider the 

report and functional assessment of Dr. Briggs dated January 30, 2017. (Doc. 10 at 22); 

(see Doc. 1-2 at 1–18). In its denial of Plaintiff’s request for review of the ALJ’s 

decision, the Appeals Council stated that this new evidence from January 30, 2017 did 

not relate to the period at issue since the ALJ decided Plaintiff’s case through June 2, 

2016, and, therefore, “does not affect the decision about whether [Plaintiff was] disabled 

beginning on or before June 2, 2016.” (Doc. 9-3 at 3). This is consistent with 20 C.F.R. § 

404.970(b), which states: “If new and material evidence is submitted, the Appeals 

Council shall consider the additional evidence only where it relates to the period on or 

before the date of the administrative law judge hearing decision.” 

 Notably, the Court does “not have jurisdiction to review a decision of the Appeals 

Council denying a request for review of an ALJ’s decision, because the Appeals Council 

decision is a non-final agency action.” Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 
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1157, 1161 (9th Cir. 2012) (citing Taylor v. Comm’r of Soc. Sec. Admin., 659 F.3d 1228, 

1231 (9th Cir. 2011)); see also Bifarella v. Colvin, 51 F. Supp. 3d 926, 932–33 (E.D. Cal. 

2014) (“[T]he Ninth Circuit has made clear that district courts do not have jurisdiction to 

review whether or not an Appeals Council appropriately denied a request for review of an 

ALJ’s decision.”). Thus, the Court has no jurisdiction to review the Appeal’s Council’s 

decision denying Plaintiff’s request for review.7

 That is, the Court may neither affirm nor 

reverse the Appeals Council’s decision. 

 Here, Plaintiff argues that the report and functional assessment of Dr. Briggs 

“must be considered by the District Court in determining if the ALJ’s decision is 

supported by substantial evidence” because “evidence before the Appeals Council is 

necessarily part of the administrative record.” (Doc. 10 at 22). Nevertheless, Plaintiff’s 

argument relies on an incorrect interpretation of the holding in Brewes v. Comm’r of Soc. 

Sec. Admin. In Brewes, the Ninth Circuit held that “when the Appeals Council considers

new evidence in deciding whether to review a decision of the ALJ, that evidence 

becomes part of the administrative record, which the district court must consider when 

reviewing the Commissioner’s final decision for substantial evidence.” Brewes, 682 F.3d 

at 1163 (emphasis added).8

 The operative word here is “considers.” For instance, in 

Brewes, the Appeals Council explicitly noted in its review of the ALJ’s decision that it 

had “considered the additional evidence” which the plaintiff submitted for the first time 

to the Appeals Council and “found that this information [did] not provide a basis for 

changing” the ALJ’s decision. Id. at 1191. 

 In contrast, the Appeals Council here did not “consider” the report and functional 

 7

 Nor was the Appeals Council required to provide a detailed explanation or any evidentiary finding as to why the additional evidence submitted by Plaintiff did not warrant review of the ALJ’s decision. See Taylor, 659 F.3d at 1232. 8 See also Harman v. Apfel, 211 F.3d 1172, 1180 (9th Cir. 2000) (“We properly may consider the additional materials because the Appeals Council addressed them in the 

context of denying Appellant’s request for review.”); Ramirez v. Shalala, 8 F.3d 1449, 

1452 (9th Cir. 1993) (“[A]lthough the Appeals Council ‘declined to review’ the decision 

of the ALJ, it reached this ruling after . . . examining the entire record, including the additional material[] and conclude[ed] that the ALJ’s decision was proper and that the additional material failed to ‘provide a basis for changing the hearing decision.’ For these reasons, we consider on appeal both the ALJ’s decision and the additional material 

submitted to the Appeals Council.”). 
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assessment of Dr. Briggs in its decision denying Plaintiff’s request for review of the 

ALJ’s decision. (Doc. 9-3 at 3). Rather, the Appeals Council indicated that it would not 

consider this additional evidence because it “does not relate to the period at issue” and 

therefore “does not affect the decision about whether [Plaintiff was] disabled” at the 

relevant time. (Id.); see also Galligan v. Astrue, 656 F. Supp. 2d 1067, 1092–93 (D. Ariz. 

2009) (distinguishing between records considered by the Appeals Council and records 

post-dating the ALJ’s decision, which the Appeals Council did not consider because such 

information did “not affect the decision about whether [the plaintiff] was disabled” at the 

relevant time). Accordingly, the new evidence Plaintiff submitted to the Appeals Council 

is not part of the administrative record here. The Court cannot affirm, modify, or reverse 

the ALJ’s final decision based upon evidence not included in the transcript of record. 42 

U.S.C. § 405(g) (“Upon review of the ALJ’s final decision, the “court shall have power 

to enter, upon the pleadings and transcript of the record, a judgment affirming, 

modifying, or reversing the decision of the Commissioner of Social Security, with or 

without remanding the cause for a rehearing.”) (emphasis added). However, the Court 

“may at any time order additional evidence to be taken before the Commissioner of 

Social Security, but only upon a showing that there is new evidence which is material and 

that there is good cause for the failure to incorporate such evidence into the record in a 

prior proceeding[.]” 42 U.S.C. § 405(g); see also Orteza, 50 F.3d at 751. 

 Evidence is material where it bears “directly and substantially on the matter in 

dispute.” Burton v. Heckler, 724 F.2d 1415, 1417 (9th Cir. 1984). “As such, it must be 

probative of the claimant’s condition at or before the time of the disability hearing.” Held 

v. Colvin, 82 F. Supp. 3d 1033, 1042 (N.D. Cal. 2015) (citing 20 C.F.R. § 404.970(b); 

Sanchez v. Sec’y of Health & Human Servs., 812 F.2d 509, 511 (9th Cir. 1987)). “Good 

cause can be shown where no party will be prejudiced by the acceptance of additional 

evidence[.]” Johnson v. Schweiker, 656 F.2d 424, 426 (9th Cir. 1981) (internal quotations 

omitted) (citation omitted); see also Burton, 724 F.2d at 1418 (holding that the “fact that 

the evidence did not exist at the time of the ALJ’s decision establishes good cause for 
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[the plaintiff’s] failure to introduce it before the ALJ”). “If new information surfaces after 

the Secretary’s final decision and the claimant could not have obtained that evidence at 

the time of the administrative proceeding, the good cause requirement is satisfied.” Key v. 

Heckler, 754 F.2d 1545, 1551 (9th Cir. 1985) (citation omitted). 

 Assuming without deciding that Plaintiff meets the materiality requirement, the 

Court cannot order this additional evidence to be taken before the Commissioner upon 

remand because Plaintiff has failed to show good cause for not having sought the opinion 

of Dr. Briggs earlier. “A claimant does not meet the good cause requirement simply by 

obtaining a more favorable report from an expert witness once his claim is denied.” Clem 

v. Sullivan, 894 F.2d 328, 332 (9th Cir. 1990) (citing Key, 754 F.2d at 1551); see also

Mayes v. Massanari, 276 F.3d 453, 463 (9th Cir. 2001). Rather, the “claimant must 

establish good cause for not seeking the expert’s opinion prior to the denial of his claim.” 

Id. Plaintiff’s assertion that “the report from Dr. Briggs is certainly new as it was not 

before the ALJ,” (Doc. 10 at 22), is not sufficient to explain why Plaintiff did not seek 

Dr. Brigg’s opinion earlier. 

 Plaintiff’s situation here is analogous to Key v. Heckler. In Key, the plaintiff 

attempted to present a new medical report supporting his position, but the Ninth Circuit 

declined to remand the case since the plaintiff “offer[ed] no reason why he had not 

solicited this information from [the doctor] earlier.” Key, 754 F.2d at 1551. The Ninth 

Circuit opined that “the obvious explanation is that when [the plaintiff] failed to succeed 

in his disability claim . . . he sought out a new expert witness who might better support 

his position.” Id. “The ‘good cause’ requirement would ‘be meaningless if such 

circumstances were sufficient to allow introduction of new evidence.’” Id. (quoting Allen 

v. Secretary of Health and Human Services, 726 F.2d 1470, 1473 (9th Cir. 1984)). 

Accordingly, the Ninth Circuit held that the plaintiff failed to meet the good cause 

requirement, and declined to remand the case for the consideration of new evidence. Id.; 

see also Clem, 894 F.2d at 332–33 (denying plaintiff’s request for remand to consider 

new evidence—including a new medical report supporting plaintiff’s position—where 
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plaintiff offered “no convincing reason” why the evidence could not have been made 

available earlier and, thus, failed to satisfy the requirement to show good cause for his 

failure to incorporate the evidence into the record in the prior proceeding); Kennedy v. 

Sullivan, 919 F.2d 144 (9th Cir. 1990) (holding that the district court did not abuse its 

discretion in not remanding the plaintiff’s case for the consideration of new evidence 

consisting of two medical reports, both of which post-dated the ALJ’s decision, where the 

plaintiff did not meet the good cause requirement because he failed to offer any reason 

“why this additional information could not have been submitted prior to the denial of his 

claim”). 

 For the reasons set forth supra, remand is not warranted for consideration of the 

report and functional assessment of Dr. Briggs dated January 30, 2017. 

IV. CONCLUSION 

 The Court is unable to deem the errors in the present case to be harmless. See 

Molina, 674 F.3d at 1115 (“[A]n ALJ’s error is harmless where it is inconsequential to 

the ultimate non-disability determination”) (citations and quotations omitted); McLeod v. 

Astrue, 640 F.3d 881, 887 (9th Cir. 2011) (noting that “the reviewing court can determine 

from the ‘circumstances of the case’ that further administrative review is needed to 

determine whether there was prejudice from the error”). The ALJ’s failure to provide 

“specific, clear and convincing reasons” for giving little weight to the opinions of Dr. 

Soni and Dr. Djurisic and for finding Plaintiff’s testimony not entirely credible is 

erroneous. Resolution of these errors is integral to the fair determination of benefits in 

order to correctly determine Plaintiff’s RFC and, accordingly, correctly determine if 

Plaintiff is disabled. Thus, the ALJ committed harmful error. 

 Plaintiff argues that the Court should credit the opinions of Plaintiff’s treating 

physicians that “Plaintiff is unable to sustain full-time work activity” as true and remand 

for an award of benefits. (Doc. 13 at 4). However, this Court has discretion to remand the 

case for further development of the record or for an award of benefits. Reddick, 157 F.3d 

at 728; see also Smolen, 80 F.3d at 1292 (noting that a district court has the discretion to 
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award benefits only when “the record has been fully developed and where further 

administrative proceedings would serve no useful purpose”). Even assuming that the 

three elements of the Ninth Circuit’s “credit-as-true rule” are satisfied, the doctrine 

“envisions ‘some flexibility.’” Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014) 

(quoting Connett, 340 F.3d at 876). The Ninth Circuit has explained that this flexibility 

“is properly understood as requiring courts to remand for further proceedings when . . . an 

evaluation of the record as a whole creates serious doubt that a claimant is, in fact, 

disabled.” Id. at 1021. 

 Considering “whether the record as a whole is free from conflicts, ambiguities, or 

gaps, whether all factual issues have been resolved, and whether the claimant’s 

entitlement to benefits is clear under the applicable legal rules,” the Court finds that 

“further administrative proceedings would be useful.” Treichler v. Comm’r of Soc. Sec.,

775 F.3d 1090, 1103–04 (9th Cir. 2014) (citation omitted). Specifically, the Court agrees 

with the Commissioner that the ALJ needs to reweigh step four and step five. (Doc. 12 at 

9). The invalid reasons given by the ALJ for giving little weight to the opinions of Dr. 

Soni and Dr. Djurisic and for finding Plaintiff’s testimony not entirely credible leave 

open the question of whether Plaintiff was actually disabled. Therefore, “remand for 

further proceedings is warranted . . . in an exercise of discretion.” Id. at 1107. Moreover, 

remand is appropriate to specifically develop the record as to the weight given to 

Plaintiff’s testimony and to the opinions of Dr. Soni and Dr. Djurisic, and for the ALJ to 

evaluate Plaintiff’s testimony and the opinions of Dr. Soni and Dr. Djurisic without 

reference to inappropriate reasons.9

/// 

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 On remand, the ALJ shall not evaluate the report and functional assessment of Dr. 

Briggs dated January 30, 2017, for the reasons noted supra. 
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 For the reasons stated above, 

IT IS ORDERED that the Commissioner’s decision denying benefits is 

VACATED, and the case is REMANDED to the agency for further proceedings 

consistent with this Opinion. The Clerk of the Court shall enter judgment accordingly. 

 Dated this 23rd day of October, 2018.