1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

WO

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Robert Pederzolli, 

Plaintiff, 

v. 

Commissioner of Social Security 

Administration, 

Defendant. 

No. CV-17-04705-PHX-DWL

ORDER 

INTRODUCTION 

Plaintiff Robert Pederzolli (“Pederzolli”) seeks review under 42 U.S.C. § 405(g) of 

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

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

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

based on reversible legal error and remands for further proceedings. 

Pederzolli, a 40-year-old male who previously worked as a swimming pool servicer, 

alleges he became disabled in December 2007. In September 2011, he filed an application 

for disability benefits. (A.R. 165-166.) The claim was denied initially on February 2, 2012 

(A.R. 70) and again upon reconsideration on October 31, 2012 (A.R. 103). Pederzolli then 

filed a written request for hearing on November 8, 2012. (A.R. 121-122.) On May 9, 2013, 

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

and testified. (A.R. 36-69.) On June 28, 2013, the ALJ issued a decision that Pederzolli 

was not disabled within the meaning of the Social Security Act. (A.R. 19-35.) On January 
- 2 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

16, 2015, the Appeals Council denied Pederzolli’s request for review (A.R. 1-7.) 

Pederzolli sought review in this Court on March 16, 2015. (A.R. 1768.) In 

response, the Commissioner conceded the ALJ had committed errors that required a 

remand for further proceedings. (Case No. 15-cv-472-PHX-DKD, Doc. 21.) Accordingly, 

this Court vacated the ALJ’s decision and remanded. (A.R. 1771-1775.) The ALJ 

conducted a new hearing on October 13, 2016 (A.R. 1713-1734) and issued a decision 

again determining that Pederzolli wasn’t disabled (A.R. 1690-1712). Pederzolli requested 

review of the ALJ’s decision, but the Appeals Council denied review on October 23, 2017. 

(A.R. 1683-1689.) At that point, the ALJ’s decision became the Commissioner’s final 

decision. 

LEGAL STANDARD 

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

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

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

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

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

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

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

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

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

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

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

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

and internal quotation marks omitted). 

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

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

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

quotation marks omitted). The Court must “look at the record as a whole to determine 
- 3 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

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

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

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

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

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

five. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ 

determines whether the claimant is engaging in substantial gainful activity. 20 C.F.R. 

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

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

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

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

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

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

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

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

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

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

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

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

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

disabled. 

BACKGROUND 

At step one, the ALJ determined that Pederzolli met the insured status requirements 

of the Social Security Act through December 31, 2012 and had not engaged in substantial 

gainful activity since December 17, 2007. (A.R. 1695-1696.) At step two, the ALJ found 

that Pederzolli had the following severe impairment: lumbar disc herniation with epidural 

fibrosis. (A.R. 1696.) The ALJ acknowledged the record also contained evidence of 

anxiety and depression but found these were not severe impairments. (Id.) At step three, 
- 4 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

the ALJ determined that Pederzolli didn’t have an impairment or combination of 

impairments that meets or medically equals the severity of a listed impairment. (Id.) At 

step four, the ALJ determined that Pederzolli had the RFC to perform sedentary work, 

except that “he [1] is limited to a maximum lifting and carrying capacity of 10 pounds 

frequently; [2] can stand and/or walk with normal breaks for a total of 2 out of 8 hours; and 

[3] [can] sit with normal breaks for more than 6 hours in an 8 hour workday.” (A.R. 1696-

1704.) Further, the ALJ determined that Pederzolli “is unlimited in pushing and pulling as 

long as it is within the weight limits specified for lifting and carrying” and “can frequently 

balance, kneel and crouch as well as occasionally climb ramps, stairs, ladders, ropes or 

scaffolds.” (Id.) Also, the ALJ determined Pederzolli can occasionally stoop and crawl 

and should avoid concentrated exposure to hazards. (Id.) The ALJ found Pederzolli wasn’t 

capable of performing his past relevant work but could perform the occupations of 

microfilming document preparer, addresser, and surveillance systems monitor. (A.R. 

1704-1706.) 

In his opening brief, Pederzolli argues the ALJ erred by: (1) improperly weighing 

the opinions of Dr. McLean, Mary Hymen, and Dr. Grove; (2) failing to provide specific, 

clear and convincing reasons to reject his symptom testimony; (3) not allowing him to 

cross-examine agency consultants and not requiring the vocational expert to provide the 

materials on which he relied; and (4) determining the Commissioner satisfied her Step 5 

burden. Pederzolli asks the Court to remand for a computation of benefits. (Doc. 19.) 

For the reasons that follow, the Court agrees the ALJ committed reversible legal 

error when weighing Dr. McLean’s medical opinions and incorporating those opinions into 

the RFC. However, the Court disagrees with Pederzolli’s other assignments of error. 

DISCUSSION 

I. Whether The ALJ Improperly Weighed The Opinion Evidence 

A. Dr. McLean And Mary Hymen

 1. The Opinions 

Dr. McLean is Pederzolli’s treating orthopedic surgeon. On June 8, 2011, Dr. 
- 5 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

McLean referred Pederzolli to Mary Hymen, a registered and licensed occupational 

therapist, for a functional capacity evaluation (“FCE”). (A.R. 1222.) Hymen conducted 

the FCE on June 28, 2011 and determined that Pederzolli was able to lift 20 pounds from 

floor to waist occasionally, 15 pounds from waist to overhead occasionally, push 72 pounds 

occasionally, and pull 74 pounds occasionally. (A.R. 346-353.) Further, Hymen 

determined that Pederzolli could only sit for approximately 20 minutes, stand for 

approximately 20 minutes, and walk for approximately 15 minutes at a time. (Id.) Thus, 

Hymen concluded, Pederzolli “needs a position that allows movement, change of position 

often.” (Id.) 

Dr. McLean reviewed Hymen’s conclusions regarding Pederzolli’s FCE on July 20, 

2011. (A.R. 1222-1224). He also conducted an independent examination to evaluate 

Pederzolli’s work capacities and limitations. (A.R. 1226.) Dr. McLean’s examination 

determined that Pederzolli could lift and carry a maximum of “10-25 pounds occasionally, 

more frequently 10 pounds,” and push/pull 50-70 pounds. (A.R. 1223.) Additionally, Dr. 

McLean determined that Pederzolli could work 8 hours a day, 40 hours a week, and could 

stand 4-6 hours a day and sit 6-8 hours a day. (A.R. 1226.) However, Dr. McLean opined 

that Pederzolli would have to change position every 30-60 minutes. (A.R. 1223.) Dr. 

McLean explained that Pederzolli should “avoid any repetitive bending, stooping or 

squatting, overhead work or working on uneven ground or climbing.” (Id.) Dr. McLean 

concluded his opinion by noting: “With respect to [Pederzolli’s] work restrictions, again, 

it is consistent with the FCE.” (Id.) 

 2. The ALJ’s Consideration 

The ALJ gave “[s]ignificant weight” to Dr. McLean’s medical opinions and adopted 

his opinion regarding Pederzolli’s sitting, standing, and walking limitations. (A.R. 1702.) 

The ALJ did not, however, address Dr. McLean’s opinion that Pederzolli should “avoid 

any repetitive bending, stooping or squatting, overhead work or working on uneven ground 

or climbing.” (Id.) 

The ALJ gave “[s]ome weight” to the FCE performed by Hymen. (A.R. 1702-
- 6 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

1703.) She determined that Hymen’s “conclusion that [Pederzolli] is limited to only 

occasional sitting in an 8-hour workday is not consistent with most of the physical opinions 

of record. . . .” (Id.) Further, the ALJ noted the authors of the other opinions regarding 

Pederzolli’s limitations were acceptable medical sources, unlike Hymen. (Id.) Despite 

discounting Hymen’s opinion, the ALJ considered the limitations expressed by Hymen and 

added a sit/stand option at will into Pederzolli’s RFC. (Id.) 

 3. Analysis 

Pederzolli argues the ALJ erred in four ways when weighing Dr. McLean and Mary 

Hymen’s opinions. The first and second arguments are predicated on Pederzolli’s assertion 

that Dr. McLean endorsed the sitting, standing, and walking limitations in Hymen’s FCE 

by noting in his medical opinion: “With respect to [Pederzolli’s] work restrictions, again, 

it is consistent with the FCE.” First, Pederzolli argues the ALJ should have found him 

disabled because the vocational expert testified there are no occupations that could be 

performed with the limitations allegedly endorsed by Dr. McLean. Second, Pederzolli 

contends that, because Dr. McLean endorsed the sitting, standing, and walking limitations 

in Hymen’s FCE, but also provided conflicting limitations, the ALJ erred by not resolving 

the conflict. (Doc. 19 at 13-14; Doc. 29 at 2-5.) 

These arguments are without merit. Dr. McLean didn’t endorse all of the limitations 

determined by Hymen; in fact, he disagreed with the extent of those limitations. This is 

evident because Dr. McLean conducted his own examination of Pederzolli and concluded 

that Pederzolli was subject to different limitations than those identified by Hymen. Dr. 

McLean thus didn’t endorse every limitation identified by Hymen when he said the work 

restrictions he was identifying are “consistent with the FCE.” The only other mention in 

Dr. McLean’s medical opinion of the FCE is that “[Pederzolli’s] FCE did find that he is 

capable of working in sedentary to light capacity.” (A.R. 1223.) Indeed, Dr. McLean’s 

medical opinion is consistent with Hymen’s FCE, to the extent both determined Pederzolli 

can perform sedentary work. Therefore, the ALJ’s decision to afford “[s]ignificant weight” 

to Dr. McLean’s medical opinion didn’t preordain a disability finding, nor was there an 
- 7 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

internal conflict within Dr. McLean’s medical opinion regarding Pederzolli’s limitations 

that the ALJ was obligated to resolve. 

Pederzolli next argues the ALJ erred by rejecting Hymen’s opinion because she was 

not an acceptable medical source. The Court disagrees. The ALJ rejected Hymen’s 

opinion that Pederzolli “is limited to only occasional sitting in an 8-hour workday” because 

it “is not consistent with most of the physical opinions of record, including Dr. McLean . . . 

the State agency doctors, and Dr. McPhee, the consultative examiner.” (A.R. 1703.) In 

other words, although the ALJ mentioned that Hymen wasn’t an “acceptable medical 

source,” she didn’t reject Hymen’s opinions on that basis—instead, she rejected them 

because they conflicted with the other medical opinions in the record. 

This was a valid basis for rejection. Because Hymen is an occupational therapist, 

she is not considered an “acceptable medical source.” Seaman v. Berryhill, 2017 WL 

3879084, *5 (D. Alaska 2017) (“‘[O]nly licensed physicians and certain qualified 

specialists are considered acceptable medical sources.’ Other health care providers, such 

as occupational therapists, are considered ‘other sources’ . . . .”) (citations omitted). 

Accordingly, under the rules applicable at the time of Pederzolli’s hearing,1

 the ALJ was 

only required to provide germane reasons for discounting Hymen’s opinion. Molina v. 

Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citation and internal quotation marks 

omitted). And inconsistency between a medical opinion from an acceptable source and the 

opinion of a non-acceptable source is a germane reason to give less weight to the opinion 

of the other source. Molina, 674 F.3d at 1112 (citations omitted) (“Wheelwright’s opinion 

was inconsistent with that of Dr. Yost . . . whose opinion was. . . entitled to greater weight. 

. . . Accordingly, the ALJ did not err in discounting Wheelwright’s opinion where it 

conflicted with Dr. Yost’s evaluation.”). 

 Finally, Pederzolli argues the ALJ erred because she failed to adopt some of the 

 

1

 “[F]or all claims filed on or after March 27, 2017, the Rules in 20 C.F.R. § 

404.1520c (not § 404.1527) for determining the persuasiveness of the medical evidence shall apply. . . .” Boissiere v. Berryhill, 2017 WL 3741261, *8 n.8 (C.D. Cal. 2017). 

Because Pederzolli’s applications for benefits were filed prior to March 27, 2017, these 

new regulations did not apply at the time the ALJ issued her decision. 
- 8 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

limitations that were expressed in Dr. McLean’s opinion. Specifically, Pederzolli contends 

Dr. McLean recommended no repetitive “bending, squatting, overhead work or working 

on uneven ground” and restricted Pederzolli to “seldom” stooping, yet the ALJ didn’t 

incorporate these limitations into the RFC. (Doc. 19 at 13-14, 20; Doc. 29 at 2-5.) 

An ALJ must provide reasons for rejecting each opined limitation in a medical 

opinion when determining a claimant’s RFC. Betts v. Colvin, 531 Fed. App’x 799, 800 

(9th Cir. 2013) (“Though the ALJ said he was according ‘the greatest weight’ to Dr. Van 

Eerd’s opinion, the ALJ’s finding regarding Betts’ residual functional capacity (RFC) 

failed to take into account certain limitations identified by Dr. Van Eerd. . . . The ALJ 

provided no reasons for disregarding aspects of Dr. Van Eerd’s opinion, so we must 

reverse.”); Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009) (“[A]n 

RFC that fails to take into account a claimant’s limitations is defective.”); SSR 96-8p, *7 

(“The RFC assessment must always consider and address medical source opinions. If the 

RFC assessment conflicts with an opinion from a medical source, the adjudicator must 

explain why the opinion was not adopted.”). Here, the ALJ didn’t do so. Thus, the ALJ 

erred by rejecting the opined limitations of Dr. McLean without providing reasons. 

 Still, an error doesn’t warrant reversal if it’s harmless. Stout v. Comm’r, Soc. Sec. 

Admin., 454 F.3d 1050, 1055-56 (9th Cir. 2006). An error is harmless if it’s 

“inconsequential to the ultimate nondisability determination.” Molina, 674 F.3d at 1115 

(citations omitted). “In other words, harmless error occurs when the record shows that ‘the 

ALJ would have reached the same result absent the error’ or ‘it was clear [the errors] did 

not alter the ALJ’s decision.’” Nelson v. Colvin, 2013 WL 4010860, *2 (D. Ariz. 2013) 

(quoting Molina, 674 F.3d at 1115). 

 On the one hand, the ALJ’s failure to provide reasons for rejecting Dr. McLean’s 

medical opinions regarding Pederzolli’s bending, squatting, and stooping limitations was 

harmless. The ALJ ultimately determined Pederzolli could perform the occupations of 

microfilming document preparer, addresser, and surveillance systems monitor. None of 

these occupations involves any bending, squatting, or stooping. Dictionary of Occupation 
- 9 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

Titles (“DOT”) DOT 249.587-018, available at 1991 WL 672349; 209.587-010, available 

at 1991 WL 671797; DOT 379.367-010, available at 1991 WL 673244.2

 

 On the other hand, the ALJ’s failure to provide reasons for rejecting Dr. McLean’s 

opined limitations regarding Pederzolli’s ability to perform “overhead work” and “work[] 

on uneven ground” wasn’t harmless. This is because the DOT doesn’t address whether 

particular occupations involve overhead work or work on uneven ground. Although the 

Court is skeptical that the three occupations at issue in this case (microfilming document 

preparer, addresser, and surveillance systems monitor) involve working on uneven ground, 

it’s possible these occupations include repetitive overhead work. Thus, the Court cannot 

conclude the ALJ’s error was “inconsequential to the ultimate nondisability 

determination.” Molina, 674 F.3d at 1115. On remand, the ALJ must (1) provide reasons 

to reject Dr. McLean’s opined limitations concerning Pederzolli’s ability to perform 

repetitive overhead work and work on uneven ground and/or (2) determine whether the 

occupations of microfilming document preparer, addresser, and surveillance systems 

monitor require repetitive overhead work or work on uneven ground. 

B. Dr. Grove

 1. The Opinion 

Dr. Grove is Pederzolli’s treating pain management physician. Pederzolli contends 

that Dr. Grove treated him on more than 60 separate occasions from 2012 to 2016. (Doc. 

 

2

 Social Security terminology doesn’t include the terms “bending” or “squatting” as postural-manipulative impairments that must be included in an RFC. See, e.g., SSR 85-15, 

available at 1985 WL 56857, *7. However, there are three types of postural-manipulative impairments recognized in the Commissioner’s policy rulings that include “bending.” Van 

Banh v. Colvin, 2015 WL 5020670, *3 (C.D. Cal. 2015). These are “stooping,” (bending the body downward and forward by bending the spine at the waist), “kneeling” (bending the legs at the knees to come to rest on one or both knees), and “crouching” (bending the body downward and forward by bending both the legs and spine). SSR 85-15, available 

at 1985 WL 56857, *7. And although “squatting” is not a postural-manipulative impairment recognized in Social Security terminology, “crouching” is recognized, and “crouching” is “essentially synonymous” with “squatting.” Chavez v. Astrue, 699 F. Supp. 2d 1125, 1133 n.5 (C.D. Cal. 2009) (citations omitted) (“In assessing plaintiff’s RFC, the ALJ, in accordance with Social Security terminology . . . used the term ‘crouch’ rather than 

‘squat.’ However, this is inconsequential since the terms are essentially synonymous.”). None of the occupations the ALJ determined Pederzolli could perform involve any “stooping,” “kneeling,” or “crouching.” 
- 10 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

19 at 17.) In March 2012, Dr. Grove opined that Pederzolli could lift and carry more than 

10 pounds, but fewer than 15 pounds. (A.R. 1107.) He determined that, in an eight-hour 

workday, Pederzolli could sit fewer than two hours and stand and/or walk fewer than two 

hours. (Id.) Dr. Grove also determined that Pederzolli couldn’t ever bend, crawl, climb, 

stoop, crouch, or kneel. (Id.) Further, he opined that Pederzolli’s pain prevented him from 

sustaining work activity for eight hours a day, five days a week. (Id.) 

In April 2013, Dr. Grove made similar findings and also found it was medically 

necessary for Pederzolli to alternate between sitting, standing, and walking every 1-20 

minutes, and for every position change, Pederzolli would need to rest for 10-15 minutes. 

(A.R. 1618.) He opined that Pederzolli suffered from pain, fatigue, dizziness, and 

headaches to a “severe” degree, such that Pederzolli would be off-task more than 21% of 

the day, and that Pederzolli would miss more than 6 days per month due to his impairments. 

In October 2016, Dr. Grove again evaluated Pederzolli. (A.R. 2141-2142.) Dr. 

Grove made the same findings as before, except he determined Pederzolli was more limited 

in his ability to lift and carry weight. (Id.) He opined Pederzolli could lift and carry fewer 

than 10 pounds. (Id.) 

 2. The ALJ’s Consideration 

The ALJ gave “[l]ittle weight” to Dr. Grove’s opinions. She stated that Dr. Grove’s 

opinions were “significantly more restrictive than opinions made by other acceptable 

medical sources, including [Pederzolli’s] treating orthopedist, a consultative examiner, and 

two State Agency physicians.” (A.R. 1703.) The ALJ explained that Dr. McLean’s 

opinion, as Pederzolli’s treating orthopedist, put him “in the best position to accurately 

ascertain the limitations stemming from [Pederzolli’s] physical problems.” (Id.) 

Moreover, the ALJ questioned the reliability of Dr. Groves progress notes “in light of 

[Pederzolli’s] efforts to obtain narcotics prescriptions and treating doctor’s comments 

about [Pederzolli’s] pain behaviors.” (Id.) The ALJ also noted perceived inconsistencies 

between Dr. Grove’s opinions and other statements Dr. Grove made. Finally, the ALJ 

determined the laboratory findings and clinical signs didn’t support Dr. Grove’s opinions. 
- 11 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

 3. Analysis 

Pederzolli contends the ALJ improperly discounted Dr. Grove’s medical opinions. 

Although Pederzolli employs a shotgun approach on this issue, scattering numerous 

arguments throughout his brief, the Court discerns at least five such assignments of error: 

(1) the ALJ selectively cited “isolated portions of the record”; (2) the ALJ incorrectly 

assumed, based on the fact he didn’t always exhibit a nonantalgic gait or need an assistive 

device, that he couldn’t be significantly limited in his walking and standing abilities; (3) 

Dr. Grove’s medical opinion was entitled to increased weight because he treated Pederzolli 

more than any other doctor; (4) the ALJ displayed “an insufficient understanding of 

medical treatment and terminology”; and (5) the ALJ improperly accused Pederzolli of 

malingering. (Doc. 19 at 14-20.) 

The Court concludes the ALJ didn’t err by rejecting portions of Dr. Grove’s medical 

opinions. As an initial mater, it is important to note that Dr. Grove’s medical opinions 

conflicted with those of Dr. McLean. Because both doctors served as Pederzolli’s treating 

physicians, the ALJ could reject one of their opinions without providing specific and 

legitimate reasons. See e.g., Burke v. Colvin, 2016 WL 8738224, *4 (S.D. Cal. 2016) (“If, 

however, a treating physician’s opinion is contradicted by another treating physician, the 

ALJ does not need to provide specific and legitimate reasons.”); Green v. Colvin, 2013 WL 

1281750, *7 (E.D. Cal. 2013) (“Where, as here, the ALJ is presented with conflicting 

medical opinions of equal weight, the ALJ may resolve the conflict and need not provide 

specific and legitimate reasons.”). 

Nevertheless, the ALJ provided reasons for rejecting Dr. Grove’s medical opinions 

regarding the extent of Pederzolli’s limitations that are specific and legitimate. For 

example, the ALJ explained that Dr. Grove’s medical opinions were “significantly more 

restrictive” than other acceptable medical sources, including Dr. McLean—who, as 

Pederzolli’s treating orthopedist, “was in the best position to accurately ascertain the 

limitations stemming from [Pederzolli’s] physical problems.” (A.R. 1703.) Although 

Pederzolli contends the ALJ should have placed more stock in Dr. Grove’s opinions, 
- 12 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

because Dr. Grove met with him more often and specialized in pain management, it was 

rational for the ALJ to choose to credit Dr. McLean’s opinions—Dr. McLean is an 

orthopedic specialist and the disability claim in this case arises from Pederzolli’s back 

issues—and it would be improper for this Court to second-guess that determination. See 

20 C.F.R. § 404.1527(c)(5) (“We generally give more weight to the medical opinion of a 

specialist about medical issues related to his or her area of specialty than to the medical 

opinion of a source who is not a specialist.”). Additionally, the ALJ explained that Dr. 

Grove’s treating records in recent years “contain more significant abnormalities, especially 

repeated findings of positive straight leg raise” than the records of other treating and 

examining doctors. (A.R. 1699.) For example, on numerous occasions, Dr. Grove made 

findings of positive leg raise (e.g., A.R. 1579, 1582, 2017), whereas other doctors, 

including Dr. McLean, made negative findings of straight leg raise during similar time 

periods (e.g., A.R. 1920, 2006). Thus, the ALJ didn’t err by rejecting Dr. Grove’s medical 

opinions. 

II. Pederzolli’s Symptom Testimony 

Pederzolli argues the ALJ committed several errors when rejecting his symptom 

testimony. Among other things, Pederzolli argues the ALJ: (1) incorrectly rejected his 

testimony about standing and walking limitations because he didn’t continuously exhibit a 

nonantalgic gait or use an assistive device; (2) “omit[ted] numerous abnormal findings and 

misinterpret[ed] certain medical terminology”; (3) erroneously determined that medical 

professionals believed he was overstating his level of pain; and (4) incorrectly determined 

his daily activities weren’t consistent with his symptom testimony. (Doc. 19 at 20-24.) 

A. Legal Standard

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

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

1112 (citation omitted). “First, the ALJ must determine whether there is objective medical 

evidence of an underlying impairment which could reasonably be expected to produce the 

pain or other symptoms alleged.” Id. (citations and internal quotation marks omitted). 
- 13 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

Here, the ALJ determined that Pederzolli satisfied this first step. (A.R. 1697 [“[T]he 

undersigned finds that the claimant’s medically determinable impairment could reasonably 

be expected to cause the alleged symptoms . . . .”].) 

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

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

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

quotation marks omitted). Here, the ALJ didn’t find evidence of malingering, so she was 

required to provide specific, clear and convincing reasons to reject Pederzolli’s testimony. 

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

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

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

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

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

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

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

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

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

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

functional capacity finding is not the same as providing clear and convincing reasons for 

finding the claimant’s symptom testimony not credible.” Brown-Hunter, 806 F.3d at 494. 

Additionally, the ALJ must “elaborate on which daily activities conflicted with which part 

of Claimant’s testimony.” Burrell, 775 F.3d at 1138. 

B. Pederzolli’s Testimony

At the 2016 administrative hearing, Pederzolli testified that he suffers from various 

symptoms that could limit his RFC. Pederzolli claimed that he can only stand or walk for 

approximately 20 minutes at a time, and then he needs to sit or lie down. (A.R. 1724-

1725.) Further, he testified he can alternate sitting and standing for one to two hours, but 

after that he needs to lie down. (A.R. 1725.) 
- 14 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

Pederzolli also testified that he is able to do chores around the house, as long as they 

aren’t below his waist. (A.R. 1721.) However, after 30 minutes to an hour of chores, 

Pederzolli stated he needs to lie down for 15 minutes before he can resume. (A.R. 1726.) 

 Additionally, Pederzolli claimed he can’t walk further than a block or so and can’t 

lift more than 15 pounds. (A.R. 1725.) He testified that since his injury, the most he has 

been outside his house is four hours at a time. (Id.) Pederzolli stated that if he is out of his 

house for four hours, he “can feel the effects [of the increased back pain] for days.” (A.R. 

1730.) Finally, Pederzolli testified that he can’t sleep for more than four to six hours at 

night, so he needs to take one to two naps per day, six to seven days a week. (A.R. 1719-

1720.) These naps last between one to four hours each. (Id.) 

C. Analysis

 The ALJ provided specific, clear and convincing reasons for rejecting Pederzolli’s 

symptom testimony. The ALJ explained that the objective medical evidence didn’t support 

Pederzolli’s allegations regarding the extent of his sitting, standing, and walking 

limitations. For instance, the ALJ cited an August 2008 statement from Dr. Zoran Maric—

Pederzolli’s treating orthopedist at the time—that “all along” Pederzolli’s subjective pain 

complaints had been “somewhat out of proportion to what one would expect,” and there 

was a “significant nonorganic component to [Pederzolli’s] pain.” (A.R. 1697 [citing A.R. 

770].) The ALJ also noted that Dr. McLean, in 2011, determined Pederzolli had a 

“structurally sound spine” despite his subjective pain complaints. (A.R. 1697 [citing A.R. 

923].) Further, the ALJ quoted a 2016 statement by Dr. McLean that “we are dealing with 

predominantly subjective pain complaints.” (A.R. 1697 [citing A.R. 1995].) And the ALJ 

cited portions of the medical record that showed generally normal findings. (A.R. 1699, 

1700 [citations omitted].) 

 Although an ALJ can’t reject a claimant’s symptom testimony “simply because the 

alleged severity of the pain or symptoms is not supported by objective medical evidence,” 

Lingenfelter v. Astrue, 504 F.3d 1028, 1040 n.11 (9th Cir. 2007) (citation omitted), the ALJ 

here provided other specific, clear and convincing reasons unrelated to the objective 
- 15 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

medical evidence. For example, the ALJ noted that the record supported a greater walking 

and sitting capacity than Pederzolli had claimed. After Pederzolli’s second surgery, he told 

doctors on multiple occasions that he could walk 1-2 miles per day (A.R. 1700 [citing A.R. 

922, 926, 974, 977, 1009].) Dr. McLean had recommended that Pederzolli walk for 

exercise, which, in the ALJ’s view, “suggest[ed] [Pederzolli] retained some significant 

ability to walk.” (A.R. 1700 [citing A.R. 833,888, 970, 982].) Pederzolli also testified at 

the hearing that he could drive to his parents’ home, which the ALJ noted “took 30 minutes 

each way.” (A.R. 1700.) 

The ALJ provided another specific, clear and convincing reason for rejecting 

Pederzolli’s claimed sitting, standing, and walking limitations by identifying numerous 

records in which physicians noted improvement in Pederzolli’s activity levels. Following 

Pederzolli’s 2008 surgery, Dr. Grove determined that Pederzolli’s activity level had 

“dramatically improved.” (A.R. 1701 [citing A.R. 737-738].) The ALJ observed that a 

“‘[d]ramatically improved’ activity level was repeatedly noted from the second half of 

2008 through 2011.” (A.R. 1701 [citations omitted].) Additionally, similar statements 

were made by Pederzolli’s pain management provider between 2011 and 2014. (Id.

[citations omitted].) Finally, the ALJ noted, “[o]nly since 2014 has Dr. Grove consistently 

noted slower functional improvement. . . [yet] Dr. Grove still characterized it as an 

‘improvement’ rather than a decrease in functioning.” (Id.) 

The ALJ also provided a specific, clear and convincing reason to reject Pederzolli’s 

fatigue testimony. The ALJ observed that Pederzolli was “repeatedly described as awake 

and/or alert during medical visits.” (A.R. 1701 [citing more than 20 such instances].) The 

ALJ also noted that although at times Pederzolli complained of fatigue, he often denied 

being fatigued or didn’t make complaints about fatigue. (A.R. 1701.) Furthermore, the 

ALJ couldn’t identify a single instance in the medical record in which Pederzolli told a 

treating source that he was so fatigued he needed to take naps during the day. (Id.) Cf. 

Dunn v. Astrue, 2009 WL 1844347, *7-8 (C.D. Cal. 2009) (affirming ALJ’s rejection of 

claimant’s symptom testimony, where claimant testified at the hearing she “cried daily” 
- 16 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

yet “never told [her doctor] she cried daily”). 

Finally, Pederzolli’s criticisms of the ALJ’s analysis don’t require reversal. For 

example, Pederzolli contends the objective medical evidence supports work-preclusive 

limitations and the ALJ “omits numerous abnormal findings and misinterprets certain 

medical terminology.” But the medical records the ALJ cited are clear—the extent of 

Pederzolli’s pain is not supported by the objective medical evidence. Thus, although the 

ALJ didn’t mention some abnormal findings and may have misinterpreted certain medical 

terminology, this doesn’t change the doctors’ conclusions upon which the ALJ relied. Cf. 

Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (citation omitted) 

(“[I]n interpreting the evidence and developing the record, the ALJ does not need to 

‘discuss every piece of evidence.’”). 

Similarly, Pederzolli contends the statements regarding his ability to walk one to 

two miles per day aren’t indicative of his actual abilities; instead, he claims this was “an 

isolated seven month period . . . not representative of [his] walking capacity throughout the 

entire period at issue.” (Doc. 19 at 23.) However, Pederzolli doesn’t cite any evidence 

showing that his walking ability decreased after that period. Finally, Pederzolli argues the 

ALJ’s citation of statements recommending that he walk for exercise “are not actual 

activities, and there is no evidence Pederzolli could sustain a level commensurate with a 

work setting.” (Doc. 19 at 23.) The ALJ cited the recommendations, however, for the 

proposition that Pederzolli retained more ability to walk than he claimed, because the 

doctors believed Pederzolli could walk. This inference is reasonable and convincing.3

 

III. Refusal to Allow Cross-Examination 

Pederzolli argues the ALJ erred by relying on opinion evidence of consulting 

physicians but not allowing him to cross-examine them. (Doc. 19 at 24-25.) 

“A claimant in a disability hearing is not entitled to unlimited cross-examination, 

but is entitled to such cross-examination as may be required for a full and true disclosure 

 

3

 Because the reasons discussed above are sufficient to uphold the ALJ’s rejection of Pederzolli’s symptom testimony, the Court need not address whether some of the additional 

reasons identified by the ALJ were also specific, clear and convincing. 
- 17 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

of the facts.” Copeland v. Bowen, 861 F.2d 536, 539 (9th Cir. 1988). “[A]n administrative 

law judge . . . may . . . issue subpoenas” when “it is reasonably necessary for the full 

presentation of a case.” 20 C.F.R. 416.1450(d)(1) (emphasis added). Therefore, an ALJ 

has discretion to decide when cross-examination is warranted. Copeland, 861 F.2d at 539. 

Here, Pederzolli fails to articulate any particularized need for his cross-examination 

request. This is a somewhat unusual case in that the ALJ based her conclusions in 

significant part on the opinions of the claimant’s treating physician, Dr. McLean, who 

didn’t identify any limitations that would preclude Pederzolli from working. This is not, 

in other words, a case where the ALJ rejected all of the treating physicians’ opinions and 

then accepted all of the consulting physicians’ opinions. Furthermore, although Pederzolli 

argues “Dr. McLean’s opinion may have been interpreted differently” if “other opinions 

[had] been deemed unreliable through cross-examination,” this argument is based on 

speculation. (Doc. 29 at 14.) Pederzolli doesn’t identify any areas of inquiry in which 

cross-examination would be necessary, “such as a question of witness bias, an issue as to 

[the consultants’] expertise, or the foundation for [the consultants’] opinion[s].” See Abrar 

v. Sec’y of HHS, 1992 WL 389004, *4 (C.D. Cal. 1992). Nor does Pederzolli explain how 

a failure to allow cross-examination prevented full and true disclosure of the facts. Thus, 

Pederzolli hasn’t demonstrated the ALJ committed reversible error. 

IV. Step 5 

Pederzolli argues the ALJ accepted job numbers that were overstated by the 

vocational expert and improperly denied his request for production of the documentation 

on which the vocational expert relied. (Doc. 19 at 25-28.) In response, the Commissioner 

argues Pederzolli forfeited any objections to the vocational expert’s job numbers because 

Pederzolli didn’t raise an objection at any point before now. The Commissioner notes 

Pederzolli failed to object to the vocational expert’s job numbers during the 2013 

administrative hearing, in front of the Appeals Council in 2015, during his first appeal to 

this Court in 2015, during the remand hearing in 2016, or in front of the Appeals Council 

in 2017. (Doc. 22 at 14-15.) In his reply, Pederzolli argues that he preserved the issue by 
- 18 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

filing a subpoena request before the 2013 administrative hearing. Additionally, Pederzolli 

contends that he couldn’t have objected during the post-remand proceedings because no 

vocational expert testified at the remand hearing and the ALJ relied upon the testimony 

from the previous, vacated hearing. Thus, Pederzolli argues, he didn’t forfeit the argument 

because “[c]ounsel could not reasonably anticipate that the ALJ [would] use job numbers 

from the first hearing [to] deny[] the claim on re-hearing.” (Doc. 29 at 14-15.) 

On the one hand, the Court agrees with the Commissioner that Pederzolli forfeited 

his right to challenge, during the proceedings in this Court, the inaccuracy of the vocational 

expert’s job numbers. Pederzolli’s generic subpoena request for documentation didn’t 

constitute an objection to the vocational expert’s job numbers. Pederzolli issued the 

subpoena request before the vocational expert produced any job numbers, so it is difficult 

to understand how the subpoena could constitute an objection to them. The Court is also 

unpersuaded by Pederzolli’s argument that, during the post-remand hearing, he couldn’t 

“reasonably anticipate that the ALJ [would] use job numbers from the first hearing.” At 

remand hearings, where there has been no change in residual function capacity, ALJs 

regularly rely on the testimony of the vocational expert from the prior hearing. Courts have 

repeatedly determined this is permissible.4

 Thus, there is no need to deviate from the 

normal rule that “when a claimant fails entirely to challenge a vocational expert’s job 

numbers during administrative proceedings before the agency, the claimant forfeits such a 

challenge on appeal, at least when that claimant is represented by counsel.” Shaibi v. 

Berryhill, 883 F.3d 1102, 1109 (9th Cir. 2017). 

On the other hand, it should be noted that this case is being remanded to the ALJ for 

 

4

 See e.g., Paulson v. Astrue, 368 Fed. App’x 758, 760 (9th Cir. 2010) (“We first hold 

that the ALJ did not err by relying on the testimony of vocational expert Wilson from a prior hearing before a different ALJ . . . [because] . . . nothing he reviewed on remand warranted modifying [the different ALJ’s] prior RFC findings and that those findings should remain unchanged.”); McKnight v. Astrue, 340 Fed. App’x 176, 181 (5th Cir. 2009) (“Since the ALJ did not change his RFC assessment after remand, the ALJ’s failure to 

initiate new hearings or submit the vocational expert to renewed cross-examination is not 

prejudicial because the vocational expert’s interrogatories had been entered into the record 

without objection from the claimant.”); Douglas v. US Soc. Sec. Admin., 2016 WL 

5660315, *12 (D.N.H. 2016) (same). 
- 19 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

further proceedings. Those proceedings may well involve further testimony from the 

vocational expert concerning whether the occupations of microfilming document preparer, 

addresser, and surveillance systems monitor require repetitive overhead work or work on 

uneven ground. Thus, there may be an opportunity for Pederzolli to seek clarification from 

the vocational expert concerning the job numbers.5

 

V. Scope of Remand 

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

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

v. Berryhill, 880 F.3d 1041, 1045 (9th Cir. 2017). This applies particularly “[i]f additional 

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

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

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

(1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on 

remand. 

Here, the credit-as-true rule isn’t satisfied. The only reversible error committed by the ALJ 

was failing to provide reasons for rejecting Dr. McLean’s opined limitations regarding 

Pederzolli’s ability to perform repetitive overhead work and work on uneven ground. Even 

if these limitations are taken as true, the ALJ wouldn’t necessarily be required to find 

Pederzolli disabled—it’s possible that Pederzolli could still perform the occupations of 

microfilming document preparer, addresser, and surveillance systems monitor. It’s also 

possible there are other occupations Pederzolli could perform with those limitations. 

 

5

 Pederzolli also argues the ALJ erred by not requiring the vocational expert to produce the documentation upon which his opinion was founded. Pederzolli devotes only three sentences to this argument, none of which cite a case that supports Pederzolli’s conclusion. Further, Pederzolli doesn’t address this argument in his reply brief. Because Pederzolli didn’t develop this argument, the Court won’t address it. Carmickle v. Comm’r, 

Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008). 
- 20 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

Additionally, further administrative proceedings could be useful to determine whether 

Pederzolli is, in fact, unable to do repetitive overhead work and work on uneven ground 

(and if so, whether he is still capable of performing an occupation existing in a significant 

number in the national economy) and in obtaining more detail about the job numbers 

provided by the vocational expert. 

Accordingly, IT IS ORDERED that the final decision of the Commissioner of 

Social Security is vacated, and this case is remanded for further proceedings consistent 

with this opinion. The Clerk shall enter judgment accordingly and terminate this case. 

 Dated this 15th day of March, 2019.