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WO

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Christopher Burbey-Miller,

Plaintiff, 

v. 

Commissioner of Social Security 

Administration, 

Defendant. 

No. CV-17-04106-PHX-DLR

ORDER 

 Plaintiff Christopher Burbey-Miller applied for a period of disability, disability 

insurance benefits, and supplemental security income, alleging disability beginning June 

14, 2013. (A.R. 19.) The claim was denied initially on August 18, 2014, and upon 

reconsideration on February 26, 2015. (Id.) Plaintiff then requested a hearing. (Id.) On 

October 20, 2016, Plaintiff and a vocational expert (VE) testified at a hearing before an 

Administrative Law Judge (ALJ). (Id. at 33-62.) 

 On January 11, 2017, the ALJ issued a written decision finding Plaintiff not disabled 

within the meaning of the Social Security Act (“Act”), which became the Commissioner’s 

final decision when the Appeals Council denied review. (Id. at 4-6.) On November 7, 

2017, Plaintiff sought review by this Court. (Doc. 1.) After receipt of the administrative 

record (Doc. 11), the parties fully briefed the issues for review (Docs. 15, 17). For reasons 

stated below, the Court reverses the Commissioner’s decision and remands for benefits. 

// 
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BACKGROUND 

 To determine whether a claimant is disabled for purposes of the Act, the ALJ 

follows a five-step process. 20 C.F.R. § 404.1520(a). At the first step, the ALJ determines 

whether the claimant is engaging in substantial gainful activity. § 404.1520(a)(4)(i). If so, 

the claimant is not disabled and the inquiry ends. At step two, the ALJ determines whether 

the claimant has a “severe” medically determinable physical or mental impairment. 

§ 404.1520(a)(4)(ii). If not, the claimant is not disabled and the inquiry ends. 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. § 404.1520(a)(4)(iii). If so, the claimant is automatically found to be disabled. 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 still capable of 

performing past relevant work. § 404.1520(a)(4)(iv). If so, the claimant is not disabled 

and the inquiry ends. If not, the ALJ proceeds to the fifth and final step, where she 

determines whether the claimant can perform any other work based on the claimant’s RFC, 

age, education, and work experience. § 404.1520(a)(4)(v). If so, the claimant is not 

disabled. If not, the claimant is disabled. 

 At step one, the ALJ found that Plaintiff meets the status requirement of the Act 

through December 31, 2018, and has not engaged in substantial gainful activity since June 

14, 2013, the alleged onset date. (A.R. 21.) At step two, the ALJ found that Plaintiff has 

the following severe impairments: obesity, obstructive sleep apnea, degenerative disc 

disease status-post hiatal hernia, status-post inguinal hernia, gastroesophageal reflux 

disease, mood disorder, testosterone deficiency, anxiety and depression. (Id.) At step 

three, the ALJ determined that Plaintiff does not have an impairment or combination of 

impairments that meets or equals the severity of one of the listed impairments in Appendix 

1 to Subpart P of 20 C.F.R. Pt. 404. (Id. at 22.) At step four, the ALJ found that Plaintiff: 

has the [RFC] to perform light work . . . except he can occasionally climb ladders, ropes and scaffolds, frequently climb ramps and stairs, balance, stoop knee, crouch and crawl. [He] must not be exposed to fumes, odors or poor ventilation. 
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He should not be exposed to hazards such as moving 

machinery or unprotected heights. He is limited to simple, routine and repetitive work tasks involving simple work related decisions and simple instructions with few changes in the work setting. 

(Id. at 25.) The ALJ also found that Plaintiff can perform past relevant work as an outside 

delivery driver. (Id. at 30.) Therefore, the ALJ concluded that Plaintiff is not disabled. 

(Id. at 32.) 

STANDARD OF REVIEW 

It is not the district court’s role to review the ALJ’s decision de novo or otherwise 

determine whether the claimant is disabled. Rather, the court is limited to reviewing the 

ALJ’s decision to determine whether 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 scintilla but less than a preponderance, and “such relevant evidence 

that a reasonable mind might accept as adequate to support a conclusion.” Id. “Where 

evidence is susceptible to more than one rational interpretation, the ALJ’s decision should 

be upheld.” Id. The court, however, “must consider the entire record as a whole and may 

not affirm simply by isolating a ‘specific quantum of supporting evidence.’” Id. Nor may 

the court “affirm the ALJ on a ground upon which he did not rely.” Id. 

DISCUSSION

 Plaintiff challenges whether the ALJ’s RFC determination is supported by 

substantial evidence. Specifically, Plaintiff contends that the ALJ improperly discounted 

the opinions of his treating physicians and treating nurse practitioner, and rejected his 

symptom testimony. 

I. Opinions of Treating Physicians 

Plaintiff argues that the ALJ improperly weighed the opinions of Drs. Popa and 

Brown. In weighing medical source opinions, the ALJ should distinguish between three 

different types of physicians: (1) treating physicians, who actually treat the claimant; (2) 

examining physicians, who examine but do not treat the claimant; and, (3) nonexamining 

physicians who neither treat nor examine the claimant. Lester v. Chater, 81 F.3d 821, 830 
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(9th Cir. 1995). The ALJ generally should give more weight to the opinion of a treating 

physician than to the opinion of an examining physician, and more weight to the opinion 

of an examining physician than to the opinion of a non-examining physician. Orn, 495 

F.3d at 631; Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987). 

Where a treating physician’s opinion is not contradicted by another physician, it 

may be rejected only for “clear and convincing” reasons, and where it is contradicted, it 

still may not be rejected without “specific and legitimate reasons” supported by substantial 

evidence in the record. Lester, 81 F.3d at 830. Likewise, when an examining physician’s 

opinion is not contradicted by another physician, it may only be rejected for “clear and 

convincing” reasons, and when an examining physician’s opinion is contradicted by 

another physician, the ALJ is required to provide only “specific and legitimate reasons” to 

reject the opinion. Id. at 830-31. “An ALJ can satisfy the substantial evidence requirement 

by setting out a detailed and thorough summary of the facts and conflicting clinical 

evidence, stating his interpretation thereof, and making findings.” Garrison v. Colvin, 759 

F.3d 995, 1012 (9th Cir. 2014) (internal quotation and citation omitted). 

A. Dr. Popa 

Dr. Popa, Plaintiff’s primary care provider, opined on Plaintiff’s functional 

capabilities. (A.R. 615-19, 672-76, 831-35.) Dr. Popa opined that Plaintiff had extreme 

limitations in his ability to understand, remember, and carry out simple instructions, 

understand and remember detailed instructions, make judgments on simple work-related 

decisions, interact appropriately with the public, co-workers, or supervisors, and respond 

appropriately to work pressure or changes in a routine work setting. (Id. at 834.) Based 

on these findings, Dr. Popa opined that Plaintiff would be off-task more than 30% of a 

normal workweek, he would be absent from work more than 5 days a month, and would 

be unable to complete an 8-hour workday more than 5 days a month. (Id. at 835.) 

The ALJ gave Dr. Popa’s opinions “minimal weight.” (Id. at 28.) Because neither 

the ALJ nor the Commissioner contends that Dr. Popa’s opinion is contradicted, the ALJ 

was required to articulate clear and convincing reasons, supported by substantial evidence 
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for discounting the opinion. 

In explaining why Dr. Popa’s opinions were discounted, the ALJ stated that 

“opinions as to inability to work due to cognitive limitations from mental impairments are 

not in Dr. Popa’s area of specialty . . . .” (Id.) Plaintiff contends that this is contrary to 

controlling Ninth Circuit precedent. See Benton ex rel. Benton v. Barnhart, 331 F.3d 1030, 

1036 n.1 (9th Cir. 2003); Sprague, 812 F.2d at 1232. The Court agrees. The fact that 

Plaintiff’s primary care provider is not a specialist is not a valid reason for discounting his 

opinion.1

 See, e.g., Silva v. Comm’r of Soc. Sec. Admin., No. 17-CV-2258-PHX-DGC, 

2018 WL 3342898, at *12 (D. Ariz. July 9, 2018).

Next, the ALJ reasoned that Dr. Popa’s opinions are inconsistent with the objective 

medical evidence. Specifically, the ALJ found: “The available testing does suggest a 

degree of limitation but not to the degree that would require a finding of disabling cognitive 

limitations.” (A.R. 28.) Although this reason would otherwise be clear and convincing, 

see Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004), it is not 

supported by substantial evidence. Plaintiff’s neuropsychological examination concluded 

that he has “severe difficulties with processing speed and working memory,” which are 

attributable to his “psychiatric state.” (A.R. at 624.) These findings are consistent with 

Dr. Popa’s opinion that Plaintiff’s depression and anxiety caused severe limitations in his 

ability to understand, remember, and carry out simple instructions, and understand and 

remember detailed instructions. 

Finally, the ALJ discounted Dr. Popa’s opinions because they are inconsistent with 

Plaintiff’s daily activities. The ALJ reasoned that Plaintiff “successfully completed college 

level courses during the adjudicatory period obtaining a 3.61 cumulative GPA . . . [which] 

 1

 To the extent that the ALJ discounted Dr. Popa’s opinion because “he has not conducted any neuropsychological testing,” this is also unavailing. “An integral part of the treating physician’s role is to take into account all the available information regarding all of his patient’s impairments – including findings and opinions of other experts.” Lester, 81 F.3d at 833. Dr. Popa’s notes reflect that not only did he refer Plaintiff for the 

neuropsychological evaluation, he was provided the report, and reviewed it in its entirely. (A.R. 299, 609.) Dr. Popa’s opinion was based on his “notes and the evaluation by the Neuropsychiatrist.” (Id. at 610.) Notably, on appeal, the Commissioner does not defend 

this reason, or Dr. Popa’s lack of a medical specialty. 
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does not suggest disability from cognitive limitations.” (Id. at 28.) Like before, although 

this reason would otherwise be clear and convincing, see Morgan v. Comm’r of Soc. Sec. 

Admin., 169 F.3d 595, 601-602 (9th Cir. 1999), it is not supported by substantial evidence. 

Plaintiff did not obtain a 3.61 cumulative GPA “during the adjudicatory period.” Nearly 

all of Plaintiff’s associate degree was completed before the onset of his disability. After 

the on-set date, Plaintiff completed only a single course in the Fall 2013 and Spring 2014 

semesters (A.R. 281). More telling is the extreme measures that were required for him to 

complete these courses. According to Julie Burbey-Miller, Plaintiff’s ex-wife: 

During the Fall 2013 and Spring 2014 semesters all of 

[Plaintiff’s] homework and exams were completed in groups. 

[Plaintiff] and I were both in the same courses so that I would 

be able to essentially complete his work with/for him to ensure 

he received a passing grade. [Plaintiff] was so close to 

completing the course requirements to obtain his degree when 

he became disabled that I made the decision to ensure he could 

complete it by carrying him through his final two courses so he 

would be able to be the first in his family to ever finish college. . . . If I had not intervened and carried him th[r]ough the 

courses he would have never been able to complete the final 

two required courses and he would have never finished his 

college degree. 

(Id. at 283) (emphasis added).2

 

The ALJ provided three reasons for discounting Dr. Popa’s opinions.3

 Only the 

second and third of the ALJ’s articulated reasons would otherwise be clear and convincing, 

but neither is supported by substantial evidence. Therefore, the Court finds that the ALJ 

improperly discounted Popa’s opinions on these functional limitations. This error 

undermines the ALJ’s ultimate disability determination and is therefore not harmless. See 

 2

 Elsewhere in his opinion, the ALJ accepted the veracity of Julie’s statement, finding it evidenced the “great lengths” she has undertaken “to ensure [Plaintiff] obtains 

what he needs. . . .” (A.R. 29.) 

3

 Without explanation, the ALJ offered a separate discussion of Dr. Popa’s functional assessments (A.R. 615-19, 672-76, 831-35), and his April 2015 treatment note (id. at 634-653). (Id. at 28.) The ALJ concluded that the April 2015 note should be 

afforded little weight because it did not offer a function-by-function analysis. (Id. at 634.) 

It is unclear why the ALJ treated this particular treatment note as separate and apart from the rest of Dr. Popa’s treatment notes and functional assessments, but, in any event, the criticism is without foundation given that Dr. Popa provided several specific function 

assessments. 
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Maydanis v. Colvin, 119 F. Supp. 3d 969, 977 (D. Ariz. 2015). 

B. Dr. Brown 

 Dr. Brown, Plaintiff’s treating psychologist, also rendered an opinion on Plaintiff’s 

functional capabilities. (A.R. 611-14.) According to Dr. Brown, Plaintiff has moderate 

limitations in his ability to understand, remember, and carry out short and simple 

instructions. (Id. at 611-12.) He also reported that Plaintiff had moderate-to-marked 

limitations in his ability to carry out detailed instructions, and marked limitations in his 

ability to maintain attention and concentration for extended periods, perform activities 

within a schedule, maintain regular attendance, be punctual, and make simple-work related 

decisions. (Id. at 612.) 

 The ALJ afforded Dr. Brown’s opinion that Plaintiff had “marked limitations” in 

his “ability to carry out detailed three or more step instructions” little weight.4

 (Id. at 29.) 

The ALJ’s only reason for discounting this opinion is that it is not supported by Plaintiff 

completing college level courses and graduating during the adjudicatory period. (Id.) This 

reason is specific and legitimate, but for the reasons stated above, not supported by 

substantial evidence. The ALJ thus erred by giving little weight to Dr. Brown’s opinion 

that Plaintiff had marked limitations in his ability to carry out detailed instructions, and this 

error was not harmless. See Maydanis, 119 F. Supp. 3d at 977. 

II. Opinion of Treating Nurse Practitioner 

 Natalie Corsbie, Plaintiff’s treating mental health nurse practitioner, also opined on 

Plaintiff’s functional capabilities. (A.R. 829-30.) Corsbie opined that Plaintiff had the 

same work-preclusive limitations as those opined by Dr. Popa. (Id.) 

 Nurse practitioners are categorized as “other sources” under the regulations. See 20 

C.F.R. § 404.1513(d)(1) (explicitly listing nurse practitioners as an “other source” under 

the regulations).5

 “[O]nly ‘acceptable medical sources’ can be considered treating sources, 

 4

 Although the ALJ stated that Dr. Brown found marked limitations, a review of the 

record reflects that Dr. Brown opined moderate-to-marked limitations with respect to carrying out detailed instructions. (A.R. 612.) 

5

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. . . whose medical opinions may be entitled to controlling weight.” SSR 06-03P, 2006 

WL 2329939 at *2 (citing 20 C.F.R. §§ 404.1527 and 416.927(d)). An ALJ “may use 

evidence from ‘other sources’ . . . to show the severity of the individual’s impairment(s) 

and how it affects the individual’s ability to function.” Id. “Nurse practitioners are therefore 

not entitled to the same deference as acceptable treating physicians under the regulations.” 

Harris v. Comm’r of Soc. Sec. Admin., No. 17-CV-2456-PHX-GMS, 2018 WL 3154471, 

at *2 (D. Ariz. Jun. 28, 2018). An ALJ may discount “other source” opinions by giving 

germane reasons for doing so. Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). 

The ALJ afforded Corsbie’s opinions as to Plaintiff’s cognitive and social 

functioning “minimal weight.” (A.R. 29.) The ALJ reasoned that Corsbie’s opinion was 

entitled to minimal weight because it was inconsistent with Plaintiff’s successful 

completion of college course and the results of his neuropsychological examination. (Id.) 

Such reasons, if supported by the record, are well-recognized as germane. See, e.g., Adams 

v. Berryhill, 725 Fed. App’x 541, 542 (9th Cir. 2018). For the reasons stated above, 

however, the ALJ’s reasons are not supported by the record. Therefore, the Court finds 

that the ALJ improperly discounted Corsbie’s opinions.6

 

III. Plaintiff’s Symptom Testimony 

Plaintiff testified that emotional problems including depression and anger prevented 

him from working. (A.R. 43, 51.) Plaintiff also testified that his depression made it more 

 

Regarding Evaluation of Medical Evidence, 82 Fed. Reg. 5,844, 5,863 (Jan. 18, 2017). 

However, at the time of the ALJ’s decision, the regulations still qualified nurse practitioners as other sources, and thus Plaintiff’s case will be governed by the prior regulation. 

6

 The ALJ also pointed out that, under then-applicable regulations, a nurse practitioner is not an acceptable medical source for making a determination of disability. Recently, however, the Ninth Circuit found that an ALJ’s failure to credit of the nurse 

practitioner’s opinion was not justified in light of the prominent role that the nurse 

practitioner played in the claimant’s medical treatment. Popa v. Berryhill, 872 F.3d 901, 

907 (9th Cir. 2017). In Popa, the nurse practitioner treated the claimant for nearly eighteen months prior to the claimant’s residual capacity assessment. Id; see also Revels v. 

Berryhill, 874 F.3d 648, 665 (9th Cir. 2017) (holding that, although a nurse practitioner was not an “acceptable medical source,” she was still an “other source” thus there were 

“strong reasons to assign weight to her opinion” because the nurse practitioner was “a treating source who examined [the claimant] at least ten times over two years.”). Here, Corsbie treated Plaintiff from October 2013 through at least June 2016, seeing him over twenty times in that period. 
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difficult to understand and remember simple instructions. (Id. at 50-53.) Plaintiff alleged 

that 4-5 days a week his depression is so bad he is unable to get out of bed. (Id. at 52.) 

In evaluating a claimant’s testimony regarding subjective pain or other symptoms, 

the ALJ must engage in a two-step analysis. First, the ALJ determines whether the claimant 

presented objective medical evidence of an impairment that reasonably could be expected 

to produce some degree of the symptoms alleged. Second, if the claimant makes this 

showing and there is no evidence of malingering, “the ALJ can reject the claimant’s 

testimony about the severity of her symptoms only by offering specific, clear and 

convincing reasons for doing so.” Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996). 

The Court need not uphold all of the ALJ’s reasons for discrediting a claimant, so long as 

substantial evidence supports the ALJ’s decision. See e.g., Batson, 359 F.3d at 1197. 

The ALJ found that Plaintiff’s medically determinable impairments could 

reasonably be expected to cause his alleged symptoms, but that his “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[.]” (A.R. at 25.) The “other 

evidence” offered by the ALJ includes the degree in which Plaintiff’s symptoms are 

managed by medication and his daily activities. (Id. at 27.) The ALJ therefore was 

required to articulate clear and convincing reasons for discounting the testimony. 

A. Medication 

The ALJ’s discounted Plaintiff’s symptom testimony because Plaintiff’s alleged 

symptoms were improved with “structured treatment” and “psychotropic medication.” 

(Id.) Effective control of impairments with medication is a clear and convincing reason 

for discounting symptom testimony. See Warre v. Comm’r, 439 F.3d 1001, 1006 (9th Cir. 

2006); Wellington v. Berryhill, 878 F.3d 867, 876 (9th Cir. 2017) (“[E]vidence of medical 

treatment successfully relieving symptoms can undermine a claim of disability.”). 

This reason, however, is not supported by substantial evidence. The ALJ noted that 

Plaintiff reported that his “anger issues had improved, he was denying paranoia, 

hallucinations and was reporting calmness overall. He was also reporting having structure 
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for the day as defined by his wife and sticking to tasks on a list. [He] has never been 

hospitalized due to a severe decline in cognitive function.” (A.R. 27.) The ALJ’s analysis 

demonstrates that Plaintiff’s mental condition was somewhat responsive to treatment and 

medication. “But to reject a claimant’s testimony, it is not enough for the ALJ to show that 

the [condition] was responsive to treatment; the ALJ must show that the [condition] was 

‘controlled,’ i.e., no longer debilitating.” Lopez v. Colvin, 195 F. Supp. 3d 903, 911 (D. 

Ariz. 2016) (internal citation omitted). The fact that Plaintiff experienced minor 

improvements, like fewer periods of paranoia, does not support a finding that his condition 

was effectively controlled. “Rather, the ALJ must show that the treatment was capable of 

providing lasting relief.” Id. Here, none of the evidence relied upon by the ALJ supports 

a finding that Plaintiff’s depression and anxiety were controlled. Even when Plaintiff’s 

treating providers reported that treatment had stabilized symptoms, they consistently found 

that he continued to suffer from depression, anxiety and paranoia. (See, e.g., A.R. 718-19 

(continued issues with anxiety); 721 (symptomatic of paranoia, depression, and anger); 723 

(anxiety continues); 729 (restless, impulsive, and irritable); 733-34 (increasing anxiety).) 

Because substantial evidence does not support the ALJ’s finding that Plaintiff could control 

his depression and anxiety with medication or other treatment, it was error to reject 

Plaintiff’s symptom testimony on this basis. 

B. Daily Activities 

The ALJ’s next reason for discounting Plaintiff’s symptom testimony is that his 

alleged symptoms are inconsistent with his daily activities. (Id. at 27.) This is a clear and 

convincing reason when the activities indicate capacities are transferable to a work setting. 

Molina, 674 F.3d at 1113. Again, this reason is not supported by substantial evidence. 

The entirety of the ALJ’s findings were as follows: “Notably, in July 2015, 

[Plaintiff] was reporting that he was getting out of the house, had a better energy level, 

goes out with his wife, had gone camping with his wife, spent time at a swimming pool 

with friends of his wife and had his anger in better control.” (A.R. 27.) With respect to 

mental health issues, however, “it is error to reject a claimant’s testimony merely because 
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symptoms wax and wane in the course of treatment. Cycles of improvement and 

debilitating symptoms are a common occurrence, and in such circumstances it is error for 

an ALJ to pick out a few isolated instances of improvement over a period of months or 

years and to treat them as a basis for concluding a claimant is capable of working.” 

Garrison, 759 F.3d at 1017. Here, the ALJ did not select a few isolated instances of 

improvement, she selected a single isolated instance. This cannot serve as substantial 

evidence. Moreover, the ALJ failed to acknowledge that Plaintiff reported anxiety in 

connection with the camping trip (A.R. 757), and that any waxing improvements in July 

2015, waned within the month, as he reported at his next appointment that he was suffering 

from bouts of insomnia, depression, low energy, racing thoughts, and increased frustration 

(id. at 765-66). 

C. Objective Medical Evidence 

Finally, the ALJ reasoned that “[i]n not affording disabling cognitive limitations to 

[Plaintiff’s] [RFC], [she] considered the results of objective clinical testing in the medical 

records.” (Id. at 27.) Although inconsistence with the weight of medical evidence can be 

clear and convincing reason for rejecting symptom testimony, it cannot serve as the only 

basis. See Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006). Because the 

ALJ’s other two reasons are not supported by substantial evidence, the ALJ is unable to 

rely solely on the objective medical evidence to reject Plaintiff’s testimony.7

 Therefore, 

the Court finds that the ALJ erred in rejecting Plaintiff’s symptom testimony. 

REMEDY

Having determined that the ALJ committed reversible error, the Court has discretion 

to remand the case for further development of the record, or to credit the improperly 

rejected evidence as true and remand for an award benefits. Reddick v. Chater, 157 F.3d 

 7

 Nevertheless, the Court finds this reason also not supported by substantial evidence. In support, the ALJ discussed the findings from Plaintiff’s November 2013 and April 2015 neuropsychological evaluations. (A.R. 27.) The ALJ highlighted that Plaintiff’s IQ was in the “low average range.” (Id.) Cognitive functioning does not contradict reported symptoms of depression and anxiety. See Ghanim v. Colvin, 763 F.3d 

1154, 1164 (9th Cir. 2014). Moreover, the physician conducting the neuropsychological examination noted that Plaintiff had “unusual performance” on some tests that “appear related [] to attention difficulties associated with his psychiatric state.” (A.R. 623.) 
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715, 728 (9th Cir. 1998). In deciding whether to remand for an award of benefits, the Court 

considers whether: (1) the ALJ failed to provide legally sufficient reasons for rejecting 

evidence, (2) the record has been fully developed and further proceedings would serve no 

useful purpose, and (3) it is clear from the record that the ALJ would be required to find 

the claimant disabled were such evidence credited. Triechler v. Comm’r of Soc. Sec., 775 

F.3d 1090, 1100-01 (9th Cir. 2014). All three conditions of the credit-as-true-rule are met 

here. 

First, the ALJ’s decision to reject Plaintiff’s symptom testimony and the opinions 

of Plaintiff’s treating physicians and nurse practitioner is neither free of legal error nor 

supported by substantial evidence. Second, further proceedings would not serve a useful 

purpose because the ALJ’s error was not due to a failure to develop the record. Finally, 

during the hearing, the VE testified that someone with the limitations assessed by 

Plaintiff’s treating providers would be unable to perform Plaintiff’s past relevant work or 

other work. (A.R. 58-60.) Accordingly, if the treating providers’’ opinions were credited 

as true, the ALJ would be required to find Plaintiff disabled. The Court therefore exercises 

its discretion to remand for an award of benefits. 

IT IS ORDERED that the Commissioner’s decision is REVERSED and this 

action is REMANDED for an award of benefits. The Clerk of Court is directed to enter 

judgment accordingly and terminate this case. 

Dated this 26th day of March, 2019. 

Douglas L. Rayes 

United States District Judge