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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Marcus Cornell Bynum, 

Plaintiff, 

v. 

Nancy A. Berryhill, Acting Commissioner 

of Social Security Administration, 

Defendant. 

No. CV-18-0003-PHX-DGC 

ORDER 

Plaintiff Marcus Cornell Bynum seeks review under 42 U.S.C. § 405(g) of the 

final decision of the Commissioner of Social Security which denied his disability 

insurance benefits under sections 216(i), 223(d), and 1614(a)(3)(A) of the Social Security 

Act. For reasons set forth below, the Court will deny Plaintiff’s challenge to the decision 

of the Administrative Law Judge (“ALJ”). 

I. Background. 

 Plaintiff is a 42 year-old man with a high school education. A.R. 47, 158. 

Plaintiff previously worked as a dairy operator, a hazardous materials technician, a 

landscape laborer, and a truck driver. A.R. 70. Plaintiff applied for disability benefits on 

November 18, 2013, alleging disability beginning May 2, 2013. A.R. 155-61. On 

May 17, 2016, Plaintiff appeared and testified at a hearing before the ALJ. A.R. 38-75. 

A vocational expert also testified. Id. On August 1, 2016, the ALJ issued a partially 

favorable decision, finding Plaintiff was disabled within the meaning of the Social 
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Security Act from May 2, 2013, through August 11, 2014. A.R. 15-32. But the ALJ 

found Plaintiff’s disability ceased as of August 11, 2014, based on medical improvement. 

Id. The ALJ’s decision became the Commissioner’s final decision when the Appeals 

Council denied Plaintiff’s request for review on November 3, 2017. A.R. 1-5. 

II. Legal Standard. 

The district court reviews only those issues raised by the party challenging the 

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

may set aside the Commissioner’s disability determination only if the determination is 

not supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 

F.3d 625, 630 (9th Cir. 2007). Substantial evidence is more than a scintilla, less than a 

preponderance, and relevant evidence that a reasonable person might accept as adequate 

to support a conclusion considering the record as a whole. Id. In determining whether 

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

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

(internal citations and quotation marks omitted). As a general rule, “[w]here the evidence 

is susceptible to more than one rational interpretation, one of which supports the ALJ’s 

decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 

(9th Cir. 2002) (citations omitted). 

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

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

1995). In reviewing the ALJ’s reasoning, the Court is “not deprived of [its] faculties for 

drawing specific and legitimate inferences from the ALJ’s opinion.” Magallanes v. 

Bowen, 881 F.2d 747, 755 (9th Cir. 1989). 

III. The ALJ’s Sequential Evaluation Process. 

A. Disability Determination. 

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

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

the burden of proof on the first four steps, and the burden shifts to the Commissioner at 
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step five. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the 

ALJ determines whether the claimant is engaging in substantial gainful activity. 20 

C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not disabled and the inquiry ends. Id. 

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

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

not disabled and the inquiry ends. Id. At step three, the ALJ considers whether the 

claimant’s impairment or combination of impairments meets or medically equals an 

impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Pt. 404. § 404.1520(a)(4)(iii). 

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

step four. At step four, the ALJ assesses the claimant’s residual functional capacity 

(“RFC”) and determines whether the claimant is still capable of performing past relevant 

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

If not, the ALJ proceeds to the fifth and final step, where he 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. Id. If not, the 

claimant is disabled. Id.

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

Social Security Act through December 31, 2018, and that he had not engaged in 

substantial gainful activity since May 2, 2013. A.R. 22. At step two, the ALJ found that 

Plaintiff had the following severe impairments from May 2, 2013 through August 11, 

2014: cervical disc protrusion and syrinx, lumbar degenerative disc disease, 

radiculopathy status post right L4 hemilaminotomy, and partial facetectomy. A.R. 23. 

At step three, the ALJ determined that Plaintiff did not have an impairment or 

combination of impairments that meets or medically equals a listed impairment. Id. At 

step four, the ALJ found that Plaintiff had the RFC to perform sedentary work, but due to 

pain associated with his impairments, Plaintiff would be off-task twenty percent of the 

workday. A.R. 23. At step five, the ALJ found, considering Plaintiff’s age, education, 

work experience, and RFC, that no jobs existed in significant numbers in the national 
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economy that the claimant could have performed from May 2, 2013 through August 11, 

2014. A.R. 27. 

B. Continuation of Disability. 

Plaintiff underwent back surgery in April 2014. A.R. 25. The ALJ found that 

evidence in the record showed significant improvement in Plaintiff’s condition after the 

surgery. 

Once an ALJ finds a claimant disabled, the ALJ follows an eight-step sequential 

evaluation process to determine whether a claimant’s disability continues through the 

date of the decision. See 20 C.F.R. § 404.1594(f)(1)-(8). The ALJ determines whether: 

(1) the claimant is engaging in substantial gainful activity, (2) the claimant has an 

impairment or combination of impairments which meets or medically equals the severity 

of a listed impairment, (3) medical improvement has occurred, (4) medical improvement 

is related to ability to work, (5) an exception to medical improvement applies, and 

whether (6) all the claimant’s current combined impairments are severe. Then the ALJ 

assesses (7) the claimant’s RFC based on current impairments and determines whether he 

can perform past relevant work, and (8) whether the claimant can perform other work that 

is suitable for his RFC, age, education, and work experience. Id.

 The ALJ followed this sequential process and found, at step one, that Plaintiff had 

not engaged in substantial gainful activity since he became disabled on May 2, 2013. 

A.R. 22. At steps two and six, the ALJ found Plaintiff had no new impairments since 

August 12, 2014, the date his disability ended, and that his severe impairments were the 

same. A.R. 28. At step three, the ALJ found medical improvement occurred as of 

August 12, 2014. A.R. 28. At step four, the ALJ found the medical improvement was 

related to ability to work and that Plaintiff’s RFC had increased. A.R. 29. Under steps 

seven and eight, the ALJ determined that Plaintiff could not perform past relevant work 

(A.R. 31), but that he could perform the full range of sedentary work and, beginning 
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August 12, 2014, jobs existed in the national economy that Plaintiff could perform 

(A.R. 32).1

IV. Analysis. 

Plaintiff argues that the ALJ’s decision is defective for two reasons: (1) the ALJ 

erred in giving little to partial weight to the opinions of Plaintiff’s treating physician, Dr. 

Landsman; and (2) the ALJ rejected Plaintiff’s testimony without providing clear and 

convincing reasons. Doc. 12 at 1. 

A. Weighing of Medical Source Evidence. 

 1. Legal Standard. 

A physician’s opinion may be a treating source, examining source, or nonexamining source. See 20 C.F.R. § 404.1527 (evaluating opinion evidence for claims 

filed before March 2017); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). A treating 

physician is one who provides or has provided the claimant with medical treatment or 

evaluation, or who has an ongoing treatment relationship with the claimant. Id. at 

§ 404.1527(a)(2). Generally, an ALJ should give greatest weight to a treating physician’s 

opinion and more weight to the opinion of an examining physician than to one of a nonexamining physician. See Andrews, 53 F.3d at 1040-41; see also 20 C.F.R. 

§ 404.1527(c)(2)-(6) (factors ALJ considers when evaluating opinion evidence). If it is 

not contradicted by another doctor’s opinion, the opinion of a treating or examining 

physician can be rejected only for “clear and convincing” reasons. Lester, 81 F.3d at 830 

(citing Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988)). 

 2. Dr. Landsman. 

The ALJ gave partial weight to Dr. Landsman’s 2013 opinions with respect to the 

disability period of May 2013 to August 2014. A.R. 26. Plaintiff does not challenge this 

decision. 

 

1

 The ALJ did not address the fifth step given her findings at steps three and four that Plaintiff’s medical condition had improved and the improvement was related to 

ability to work. See 20 C.F.R. § 404.1594(f)(5). 
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The ALJ gave little weight to Dr. Landsman’s August 2014 opinion and partial 

weight to his May 2016 opinion. A.R. 30-31. Plaintiff challenges both decisions. 

Because Dr. Landsman is a treating physician whose opinion is not contradicted by 

another doctor, the ALJ could discount Dr. Landsman’s opinion only for clear and 

convincing reasons.2

 Lester, 81 F.3d at 830-31. 

 a. First Opinion. 

On August 21, 2014, Dr. Landsman opined that Plaintiff could sit, stand, and walk 

up to one hour in an eight-hour day; transport up to ten pounds; never climb, twist, bend 

or stoop; and drive up to one hour a day. A.R. 350. Dr. Landsman also opined that 

Plaintiff could not work at all. Id. The ALJ gave this opinion little weight for two 

reasons. First, the ALJ noted that Dr. Landsman’s August 2014 opinion was 

“inconsistent with an April 2015 nerve conduction study showing no electrophysiological 

evidence indicative of right lumbosacral radiculopathy, right tibial peroneal neuropathy, 

right carpal tunnel syndrome, or a generalized neuropathy.” A.R. 30; A.R. 391-94. 

Second, the ALJ stated that Dr. Landsman “made no adjustments in his medical source 

statement to account for the [Plaintiff’s] medical improvement, which [was] 

demonstrated by the two identical MRI scans from August 2014 and April 2016[,] as well 

as his own physical examination findings from December 2014.” A.R. 30. 

The Court finds the ALJ’s first reason – that the 2015 nerve conduction study 

contradicted Dr. Landsman’s opinion about Plaintiff’s inability to work – to be clear and 

convincing. In describing the 2015 nerve study, the ALJ provided this explanation: 

Compared to the nerve conduction study from December 2013, this study 

showed marked improvement in the claimant’s radiculopathy symptoms. 

Dr. Vehra found no electrophysiological evidence indicative of right 

lumbosacral radiculopathy, right tibial or peroneal neuropathy, right carpal 

 

2

 Defendant asserts the Court need only ask whether “substantial evidence” supports the ALJ’s credibility finding, citing Thomas v. Barnhart, 278 F.3d 947, 959 (9th 

Cir. 2002). Doc. 13 at 8. But in Thomas, the Ninth Circuit found that “[t]he ALJ gave specific, clear and convincing reasons for discounting” the testimony at issue. Id. 
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tunnel syndrome, or generalized neuropathy. The EMG showed normal 

results in the right lumbar paraspinal muscles. 

A.R. 30. Despite this evidence of improvement from Plaintiff’s 2013 condition, the ALJ 

noted that Dr. Landsman’s 2014 opinion was “the same as his opinions from September 

and December 2013.” Id. 

The Court also finds the ALJ’s second reason – Dr. Landsman made no 

adjustment to his 2013 opinion despite Plaintiff’s medical improvement – to be clear and 

convincing. The ALJ had already noted that Plaintiff reported to Dr. Ehtesharni in May 

2014 that he was “doing very well, with complete resolution of his right lower extremity 

symptoms.” A.R. 25. The ALJ also cited an MRI scan from August 2014 as evidencing 

Plaintiff’s medical improvement. A.R. 30. The ALJ provided this description: 

The scan showed stable mild bulging disc, small-left-sided posterolateral 

disc protrusion, and annular teat at L3-L4 resulting in only mild right and 

moderate right-sided neural foraminal stenosis without central canal spinal 

stenosis. The scan also showed relief of the right lateral recess stenosis and 

right-sided neural foraminal stenosis, which Dr. Uglietta noted was mild 

compared to the prior MRI scan from September 2013. 

A.R. 28. 

 The ALJ also cited Dr. Landsman’s own physical examination from December 

2014. Id. The ALJ provided this summary of the examination: 

Physical examination showed no significant areas of pain to palpitation 

posteriorly, no signs of infection, and not signs of fluid collection or any 

other problem. Dr. Landsman noted that the claimant had normal motor 

and sensory function, symmetric reflexes, and no focal neurological 

deficits. These findings are supportive of medical improvement as of 

August 12, 2014. 

A.R. 29 (citation omitted). 

 Plaintiff argues that Dr. Landsman reviewed the 2014 MRI and, although it clearly 

was different than the pre-surgery MRI, found that Plaintiff “may be getting some nerve 

impingement.” A.R. 422. But that observation was made by Dr. Landsman in 2016 and 
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does not address the ALJ’s concern that Dr. Landsman’s 2014 opinion was the same as 

his 2013 opinion despite clear evidence of improvement. 

 To be sure, there is evidence in the record that supports varying conclusions, 

including Plaintiff’s complaints of pain to Dr. Landsman and others in 2014 and 2015. 

As already noted, however, “[w]here the evidence is susceptible to more than one rational 

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

upheld.” Thomas, 278 F.3d at 954. The Court concludes that the ALJ’s reasons for 

discounting Dr. Landsman’s first opinion are supported by substantial evidence in the 

record and are clear and convincing. 

b. Second Opinion. 

In March 2016, Dr. Landsman opined that Plaintiff could sit, stand, and walk up to 

one hour in an eight-hour day; lift and carry up to twenty-five pounds occasionally, 

twenty pounds frequently, and ten pounds continuously; never bend, squat, crawl, or 

climb; occasionally reach; must avoid unprotected heights and moving machinery; has 

mild restriction in driving automotive equipment; and is likely to be absent more than 

four days per month. A.R. 419. Dr. Landsman also opined that Plaintiff’s impairments 

restricted his ability to provide consistent work effort; moderately restricted his ability to 

respond to customary work pressures or stress; and moderately restricted his ability to 

maintain interpersonal relationships and pay attention to tasks. A.R. 418-19; A.R. 434-

35. The ALJ gave partial weight to this opinion for three reasons. 

First, the ALJ found that Dr. Landsman’s opinion was inconsistent with his own 

earlier progress note of May 2015, which showed that Plaintiff’s gait appeared steady, his 

motor and sensory functions were normal, and his reflexes were symmetric. A.R. 31, 

405. In March 2016, however, Dr. Landsman opined that Plaintiff exhibited reduced 

range of motion, an abnormal gait, and difficulty squatting and toe walking. A.R. 417. 

The ALJ does not explain why the May 2015 findings – the only findings cited in this 

portion of her opinion – should control over the later findings, and the Court does not 
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find this one set of notes to be a clear and convincing reason for discrediting the doctor’s 

opinion. 

Second, the ALJ noted that Plaintiff’s course of treatment after his lumbar surgery 

had been minimal. A.R. 31. But Plaintiff testified that his sporadic treatment was often 

due to his lack of medical insurance and financial resources (A.R. 50-55, 60), and failure 

to secure treatment due to a lack of financial resources is not a clear and convincing 

reason to discredit a physician’s testimony. “Disability benefits may not be denied 

because of the claimant’s failure to obtain treatment he cannot obtain for lack of funds.” 

Trevizo v. Berryhill, 871 F.3d 664, 681 (9th Cir. 2017) (citation omitted). 

 Third, the ALJ noted that “objective findings from the August 2014 and April 

2016 MRI scans showe[ed] no evidence of spondylolysis at any level, normal marrow 

signal, and no compression fractures.” A.R. 31. As noted above, the ALJ described the 

2014 scan in some detail and explained why it reflected an improvement in Plaintiff’s 

condition. The ALJ also noted that the 2016 MRI “contained the same findings as the 

prior MRI scan from August 2014.” A.R. 30. The ALJ found that “[t]he fact that 

claimant’s lumbar spine has remained the same over nearly a two-year span after his 

lumbar surgery suggests that his back pain has not worsened and is not as severe as 

alleged.” A.R. 30. 

 Plaintiff notes that Dr. Landsman reviewed the 2016 MRI scan and, although it 

was different from Plaintiff’s pre-surgery scan, found that Plaintiff “may be getting some 

nerve impingement.” A.R. 422. Plaintiff argues that the ALJ erred in substituting her 

interpretation of the MRI for Dr. Landsman’s. As Defendant notes, however, the ALJ 

“must . . . interpret the medical evidence.” Howard ex rel. Wolff v. Barnhart, 341 F.3d 

1006, 1012 (9th Cir. 2003). The Court cannot conclude that the ALJ erred when she 

partially discounted Dr. Landsman’s opinion that did not vary from his pre-surgery 

opinion despite clear changes and improvements after the surgery. 

The Court finds this to be a clear and convincing reason for discounting Dr. 

Landsman’s 2016 opinion, supported by substantial evidence. 
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 B. Evaluation of Plaintiff’s Pain Testimony. 

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

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

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

alleged. Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). The claimant is not 

required to show that his impairment could reasonably be expected to cause the severity 

of the symptoms he has alleged, only that it could reasonably have caused some degree of 

the symptoms. Id. Second, if there is no evidence of malingering, the ALJ may reject the 

claimant’s symptom testimony only by giving specific, clear, and convincing reasons. Id. 

at 1015. 

Plaintiff testified that symptoms associated with his back impairment failed to 

improve after his surgery and physical therapy. A.R. 49-50. He testified that he received 

pain management treatment after the surgery, but that the medication did not help his 

pain to the point of comfortability. A.R. 51-52, 61. Even watching television or reading, 

Plaintiff testified, he struggles to focus because of the pain. A.R. 63. At various times 

after his surgery, Plaintiff was prescribed Vicodin and other medications for pain 

management. A.R.51-58. But the medications did not help his pain and caused him side 

effects, including a queasy stomach, lack of balance, blurred vision, and dizziness. Id. 

Plaintiff testified that the only medication he was taking at the time of the hearing was 

Tylenol P.M., in part because he has had sporadic insurance coverage and limited 

financial resources to secure other treatment. A.R. 50-55, 57, 60. Plaintiff testified that 

he continues to have constant pain in his lower back, all the way down his right leg and 

foot. A.R. 58. Plaintiff testified he can sit up for five minutes at most, stand for five 

minutes at most, walk up to 100 feet, and lift and carry half a pound. A.R. 59. He 

testified that he spends his day sitting down, and that he does not eat out, grocery shop, 

do chores, or visit friends or his children because of his pain. A.R. 59-60. Plaintiff also 

testified that using the restroom is becoming difficult. A.R. 65. 
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The ALJ found that Plaintiff’s medically determinable impairments could 

reasonably be expected to cause the alleged symptoms. The ALJ then found Plaintiff’s 

statements regarding the intensity, persistence, and limiting effects of the symptoms were 

not entirely consistent with the medical evidence and other evidence in the record. 

A.R. 29. The ALJ provided several reasons for finding Plaintiff’s testimony not fully 

credible. 

The ALJ noted that “[t]reatment notes do not sustain the claimant’s allegations of 

disabling conditions.” A.R. 31. Among the treatment notes reviewed by the ALJ were 

the May 2014 notes indicating the Plaintiff “was doing very well, with complete 

resolution of his right lower extremity symptoms” (A.R. 25); Plaintiff’s return to Dr. 

Landsman in July with some complaint of pain, for which he received medication (id.); 

Dr. Landsman’s observation in December 2014 that there was no longer any foraminal 

narrowing, that physical examination showed no significant areas of pain, and that 

Plaintiff had normal motor and sensory function, symmetric reflexes, and no focal 

neurologic deficits, findings which supported improvement (A.R. 29); and Plaintiff’s 

report to Dr. Burgher in 2015 that he received adequate pain relief with his current 

medications (id.). 

The ALJ also observed: “As discussed in detail above, the claimant’s nerve 

conduct study following his lumbar surgery showed no evidence of right lumbosacral 

radiculopathy or generalized neuropathy.” A.R. 31. The ALJ previously discussed the 

2015 nerve conduction study in some detail, finding that the study, when “[c]ompared to 

the nerve conduction study from December 2013,” “showed marked improvement in the 

claimant’s radiculopathy symptoms.” A.R. 30. “Dr. Vehra found no electrophysiological 

evidence indicative of right lumbosacral radiculopathy, right tibial or peroneal 

neuropathy, right carpal tunnel syndrome, or generalized neuropathy.” Id. Additionally, 

“[t]e EMG showed normal results in the right lumbar paraspinal muscles.” Id. The ALJ 

thus found clear medical evidence of Plaintiff’s improvement after the 2014 surgery, in 

contrast to his testimony that his back symptoms failed to improve after his surgery. 
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The ALJ also noted that “the MRI scans from August 2014 and April 2016 show 

improvement following surgery and only mild abnormalities.” A.R. 31. Those studies 

were discussed in detail by the ALJ, as recounted above, and showed “relief of the right 

lateral recess stenosis and right-sided neural foraminal stenosis, which Dr. Uglietta noted 

was mild compared to the prior MRI scan from September 2013.” A.R. 28. The ALJ 

found that the 2016 MRI “contained the same findings as the prior MRI scan from 

August 2014,” and “[t]he fact that claimant’s lumbar spine as remained the same over 

nearly a two-year span after his lumbar surgery suggests that his back pain has not 

worsened and is not as severe as alleged.” A.R. 30. 

The Court finds theses to be clear and convincing reasons. Although an ALJ may 

not reject a claimant’s subjective complaints based solely on lack of objective medical 

evidence to fully corroborate the alleged severity of pain, Moisa v. Barnhart, 367 F.3d 

882, 885 (9th Cir. 2004), that is not what the ALJ did here. The ALJ found Plaintiff’s 

testimony questionable because it was directly contradicted by medical evidence showing 

a clear improvement in his back condition following the 2014 surgery. And as noted, 

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

conclusion must be upheld.” Thomas, 278 F.3d at 954.3

IT IS ORDERED that Plaintiff’s challenge to the final decision of the 

Commissioner of Social Security is denied. The Clerk shall terminate this action. 

Dated this 22nd day of October, 2018. 

 

3

 The ALJ also noted that “[t]he claimant has been treated sporadically, and his course of treatment and use of only over-the-counter medications are not what would be 

expected with the disabling symptoms that he has alleged.” A.R. 31. But Plaintiff 

testified that his sporadic treatment and filling of prescriptions was often due to his lack 

of medical insurance and financial resources (A.R. 50-55, 60), and failure to secure 

treatment due to a lack of financial resources is not a clear and convincing reason to discredit a plaintiff’s pain testimony. Trevizo, 871 F.3d at 681.