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WO

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Silvana B. Cancanon, 

Plaintiff, 

v. 

Commissioner of Social Security 

Administration, 

Defendant. 

No. CV-17-04319-PHX-GMS

ORDER 

Pending before the Court is the appeal of Plaintiff Silvana B. Cancanon, which 

challenges the Social Security Administration’s decision to deny benefits. (Doc. 16). For 

the following reasons, the Court vacates the ALJ’s decision and remands for consideration 

in accordance with this opinion. 

BACKGROUND

 On May 22, 2013, Plaintiff applied for disability insurance benefits, alleging a 

disability onset date of January 1, 2013. (Tr. at 21). Plaintiff’s claim was denied both 

initially and upon reconsideration. (Tr. at 146; Tr. at 162). Plaintiff then appealed to an 

Administrative Law Judge (“ALJ”). (Tr. at 21). The ALJ conducted a hearing on the 

matter on October 13, 2015, as well as a supplemental hearing on April 5, 2016, and 

subsequently issued a decision denying benefits. (Tr. at 21). Plaintiff then appealed her 

decision to the Appeals Council, which denied her request for review. (Tr. at 1). 
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 In evaluating whether Plaintiff was disabled, the ALJ undertook the five-step 

sequential evaluation for determining disability.1

 (Tr. at 23–31). At step one, the ALJ 

determined that Plaintiff had not engaged in substantial gainful activity since the alleged 

onset date. (Tr. at 24). At step two, the ALJ determined that Plaintiff suffered from the 

severe impairments of degenerative changes of the spine, arthralgia and obesity. (Id.). At 

step three, the ALJ determined that none of these impairments, either alone or in 

combination, met or equaled any of the Social Security Administration’s listed 

impairments. (Tr. at 25). 

 At that point, the ALJ determined Plaintiff’s residual functional capacity (“RFC”),2

concluding that Plaintiff could perform light work prior to August 25, 2015. (Tr. at 32). 

The ALJ thus determined at step four that Plaintiff retained the RFC to perform her past 

relevant work as a “home companion.” (Tr. at 37). The ALJ did not reach step five. (Tr. 

at 38). 

DISCUSSION

 

1

 The five-step sequential evaluation of disability is set out in 20 C.F.R. § 404.1520 

(governing disability insurance benefits) and 20 C.F.R. § 416.920 (governing supplemental security income). Under the test: 

A claimant must be found disabled if she proves: (1) that she 

is not presently engaged in a substantial gainful activity[,] (2) that her disability is severe, and (3) that her impairment meets or equals one of the specific impairments described in the regulations. If the impairment does not meet or equal one of 

the specific impairments described in the regulations, the 

claimant can still establish a prima facie case of disability by 

proving at step four that in addition to the first two 

requirements, she is not able to perform any work that she has done in the past. Once the claimant establishes a prima facie 

case, the burden of proof shifts to the agency at step five to demonstrate that the claimant can perform a significant number 

of other jobs in the national economy. This step-five determination is made on the basis of four factors: the 

claimant’s residual functional capacity, age, work experience and education. 

Hoopai v. Astrue, 499 F.3d 1071, 1074-75 (9th Cir. 2007) (internal citations and 

quotations omitted). 

2

 RFC is the most a claimant can do despite the limitations caused by her impairments. See S.S.R. 96-8p (July 2, 1996). 
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I. Standard of Review 

 A reviewing federal court will only address the issues raised by the claimant in the 

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

A federal court may set aside a denial of disability benefits only if that denial is either 

unsupported by substantial evidence or based on legal error. Thomas v. Barnhart, 278 F.3d 

947, 954 (9th Cir. 2002). Substantial evidence is “more than a scintilla but less than a 

preponderance.” Id. (quotation omitted). “Substantial evidence is relevant evidence 

which, considering the record as a whole, a reasonable person might accept as adequate to 

support a conclusion.” Id. (quotation omitted). 

 However, the ALJ is responsible for resolving conflicts in testimony, determining 

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

Cir. 1995). “When the evidence before the ALJ is subject to more than one rational 

interpretation, we must defer to the ALJ’s conclusion.” Batson v. Comm’r of Soc. Sec. 

Admin., 359 F.3d 1190, 1198 (9th Cir. 2004). This is because “[t]he [ALJ] and not the 

reviewing court must resolve conflicts in evidence, and if the evidence can support either 

outcome, the court may not substitute its judgment for that of the ALJ.” Matney v. Sullivan, 

981 F.2d 1016, 1019 (9th Cir. 1992) (citations omitted). 

II. Analysis

 Plaintiff argues that the ALJ erred by: (1) giving little or no weight to the opinions 

of treating physician Dr. Mertens and examining physician Dr. Peachy, (2) improperly 

evaluating Plaintiff’s testimony as to her symptoms, and by (3) improperly discrediting the 

testimony of Plaintiff’s daughter. (Doc. 16 at 1-2). 

 A. ALJ’s Evaluation of Various Physician Opinions

 “To reject the uncontradicted opinion of a treating or examining doctor, an ALJ 

must state clear and convincing reasons that are supported by substantial evidence.” Revels 

v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (internal citations and quotation marks 

omitted). “[T]he opinion of a nonexamining physician cannot by itself constitute 

substantial evidence that justifies the rejection of the opinion of either an examining 
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physician or a treating physician.” Id. (emphasis in original) (internal quotation marks 

and citations omitted). But if a treating doctor’s opinion is contradicted by another 

nonexamining physician, it may then be rejected for “specific and legitimate reasons 

supported by substantial evidence in the record for so doing.” Lester v. Chater, 81 F.3d 

821, 830 (9th Cir. 1995). 

 Here, the ALJ gave great weight to the state agency physicians Dr. Keer and Dr. 

Metcalf. (Tr. at 29). The ALJ gave limited weight to the opinion of Dr. Peachy, and little 

weight to the opinion of Dr. Mertins. (Tr. at 29; Tr. at 28). 

 1. Dr. Peachy’s Opinion 

During his exam of Ms. Cancanon, Dr. Peachy made findings that: 

[T]he claimant would be limited to lifting and/or carrying ten pounds occasionally and less than ten pounds frequently. He determined that the claimant would be limited to standing about two hours in an eight-hour day and sitting approximately three hours in an eight hour day. He found that the claimant 

should never stoop, kneel, crouch, and crawl and only occasionally reach, handle, finger and feel. 

(Tr. at 29; Tr. at 455–456). The ALJ rejected this opinion for two reasons. First, 

the ALJ discredited Dr. Peachy’s opinion because it was based on one examination of the 

Plaintiff. (Tr. at 29). Second, the ALJ rejected this opinion because claimant was working 

part time and may not have disclosed that fact to Dr. Peachy. (Id.). 

 “[L]ike the opinion of a treating doctor, the opinion of an examining doctor, even if 

contradicted by another doctor, can only be rejected for specific and legitimate reasons that 

are supported by substantial evidence in the record.” Lester, 81 F.3d at 830–31. The fact 

that a consultative examiner examined the claimant on only one occasion may be 

considered when evaluating that examiner’s opinion—especially where the ALJ is instead 

crediting the conclusions of a treating physician who has seen the claimant on multiple 

occasions. See 20 C.F.R. § 404.1527(c)(2)(i) (“Generally, the longer a treating source has 

treated you and the more times you have been seen by a treating source, the more weight 

we will give to the source's medical opinion.”). But it cannot be the only specific and 
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legitimate reason for discrediting a consultative examiner’s opinion when the ALJ has at 

the same time given great weight to the state agency physicians who similarly examined 

the claimant on one occasion. See Pontzious v. Berryhill, 2017 WL 6276371 at *5 (D. 

Ariz. 2017). 

 The only other evidence the ALJ cites to support his decision to discredit Dr. 

Peachy’s opinion is a progress note from Dr. Mertins which indicated that Ms. Cancanon 

was working part time when she saw Dr. Peachy. But that note specifies that “it has been 

very difficult for her to work because of the above-mentioned pain.” (Tr. at 28; Tr. at 482). 

There is no contradiction between that progress note, which acknowledges that it has been 

“very difficult” for the claimant to work, and Dr. Peachy’s assessment, which describes a 

limited amount of activity that can be performed without pain.3

 It therefore cannot be relied 

upon as substantial evidence supporting a specific and legitimate reason for discrediting 

his opinion. 

 The ALJ thus erred by giving little weight to the opinion of the agency’s consultative 

physician, Dr. Peachy. 

 2. Dr. Mertins Opinion 

 The ALJ also discredited the opinion of Ms. Cancanon’s treating physician, Dr. 

Mertins. Dr. Mertins found that: 

The claimant could not perform work eight hours a day, five days a week on a regular and consistent basis. He found that 

the claimant would be limited to sitting less than two hours in an eight-hour day, standing and/or walking less than two hours in an eight-hour day and lifting and/or carrying less than ten pounds. 

(Tr. at 28). 

A physician’s reliance on a claimant’s “subjective complaints hardly undermines 

his opinion as to her functional limitations, as a patient’s report of complaints, or history, 

is an essential diagnostic tool.” Green-Younger v. Barnhart, 335 F.3d 99, 107 (2d Cir. 

2003) (internal citations and quotations omitted). However, “[i]f a treating provider’s 

 

3

 The record also contains evidence that Ms. Cancanon could no longer function in her job during 2013 because of the pain due to her medical condition. (Tr. at 493). 
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opinions are based ‘to a large extent’ on an applicant’s self-reports and not on clinical 

evidence, and the ALJ finds the applicant not credible, the ALJ may discount the treating 

provider’s opinion.” Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014) (quoting 

Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008)); see also Regennitter v. Commr 

of Soc. Sec. Admin, 166 F.3d 1294, 130 (9th Cir. 1999) (noting that where there was “[no] 

indication that Regennitter was malingering or deceptive. . . neither psychologist should be 

faulted for believing Regennitter’s complaints.”). 

 The ALJ rejected Dr. Mertins’ opinion in part, because his opinions “were clearly 

based on what the claimant told him.” (Tr. at 28). But the ALJ did not state that there was 

evidence Ms. Cancanon was malingering. Absent evidence of credibility issues or 

malingering, the ALJ cannot use Dr. Mertin’s reliance on her complaints as a specific and 

legitimate reason for discrediting his opinion. See Ghanim, 763 F.3d at 1162. Moreover, 

Dr. Mertins relied upon evidence other than Ms. Cancanon’s subjective complaints, 

including an MRI that was taken on Ms. Cancanon, and physical examinations. (Tr. at 27). 

And in his questionnaire, Dr. Mertins specifically noted that “the limitations result from 

objective, clinical or diagnostic findings which have been documented . . . in the patient’s 

medical records.” (Tr. at 604). 

The ALJ also stated generally that the findings of Dr. Mertins should be discredited 

because it was “inconsistent with the generally negative or otherwise mild diagnostic 

findings.” (Tr. at 27). Without further explanation, this cannot be a “specific and legitimate 

reason” for discrediting Dr. Mertins’ opinion. See Garrison v. Colvin, 759 F.3d 995, 1012–

13 (9th Cir. 2014) (“[A]n ALJ errs when he rejects a medical opinion or assigns it little 

weight while doing nothing more than ignoring it, asserting without explanation that 

another medical opinion is more persuasive, or criticizing it with boilerplate language that 

fails to offer a substantive basis for his conclusion.”). 

 B. Evaluation of Ms. Cancanon’s Symptom Testimony 

When a claimant alleges subjective symptoms, like pain, the ALJ must follow a 

two-step analysis to decide whether to credit the claimant’s testimony. First, the claimant 
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“must produce objective medical evidence of an underlying impairment which could 

reasonably be expected to produce the pain or other symptoms alleged.” Smolen v. Chater, 

80 F.3d 1273, 1281 (9th Cir. 1996) (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th 

Cir. 1991)) (quotation marks omitted). The claimant does not need to show “that her 

impairment could reasonably be expected to cause the severity of the symptom she has 

alleged; she need only show that it could reasonably have caused some degree of the 

symptom.” Smolen, 80 F.3d at 1282. Second, if the claimant can make the showing required 

in the first step and the ALJ does not find any 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.” Id. at 1281. 

 At the first step, the ALJ found that Ms. Cancanon’s underlying impairments could 

reasonably be expected to produce the symptoms alleged. (Tr. at 26). The ALJ did not 

find any evidence of malingering. (Id.). But at the second step, the ALJ found that her 

symptom testimony should be rejected for two reasons. First, the ALJ reasoned that 

because symptom testimony about daily activities cannot be objectively verified, it should 

be rejected. But this is true of all symptom testimony and is not a clear and convincing 

reason to discredit her testimony. Second, the ALJ stated that “even if the claimant’s daily 

activities are truly as limited as alleged, it is difficult to attribute that degree of limitation 

to the claimant’s medical condition, as opposed to other reasons, in view of the relatively 

weak medical evidence and unremarkable diagnostic evidence for the period under 

review.” (Tr. at 27). 

 At the second step, if the “evidence reasonably supports either confirming or 

reversing the ALJ’s decision, [the Court] may not substitute [its] judgment for that of the 

ALJ.” Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1196 (9th Cir. 2004) (citing 

Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)). But the Court “may not affirm [the 

ALJ’s decision] simply by isolating a specific quantum of supporting evidence.” Jones v. 

Heckler, 760 F.2d 993, 995 (9th Cir. 1985). When evaluating symptom testimony, 

“[g]eneral findings are insufficient; rather, the ALJ must identify what testimony is not 
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credible and what evidence undermines the claimant’s complaints.” Ghanim v. Colvin, 

763 F.3d 1154, 1163 (9th Cir. 2014); see also Burrell v. Colvin, 775 F.3d 1133, 1138 (9th 

Cir. 2014) (“But the ALJ did not elaborate on which daily activities conflicted with which 

part of Claimant’s testimony.”) (emphasis in original). The ALJ did not meet this 

requirement here; he failed to make specific findings to supporting his adverse credibility 

determination. 

Reading the ALJ’s opinion, the Court is left to guess at what “other reasons” apart 

from claimant’s medical condition could cause the alleged symptoms—the ALJ does not 

explain this aspect of his reasoning. Nor does the ALJ explain what he means by “the 

relatively weak medical evidence,” (Tr. at 27), or how that evidence conflicts with Ms. 

Cancanon’s symptom testimony. See Burrell 755 F.3d at 1138. After all, the ALJ had 

already determined that Ms. Cancanon produced sufficient medical evidence 

demonstrating underlying impairments that could produce the symptoms alleged. 

As for the “unremarkable diagnostic evidence,” the ALJ appears to be referencing 

his own evaluation of the “diagnostic studies.” (Tr. at 27). But the list of diagnostic studies 

the ALJ references has objective findings that could support the symptom testimony 

alleged, including a diagnosis of degenerative disk disease and arthritis of the left knee. 

(Tr. at 27). And while the ALJ is responsible for weighing the medical evidence, an ALJ 

may not substitute his own medical judgment for that of medical experts. See Nguyen v. 

Chater, 172 F.3d 31, 35 (1st Cir. 1999) (stating that the ALJ is “simply not qualified to 

interpret raw medical data in functional terms”). In any event, an “absence of medical 

records regarding alleged symptoms is not itself enough to discredit a claimant's 

testimony.” Trevizo v. Berryhill, 871 F.3d 664, 682 n.10 (9th Cir. 2017) (citing Robbins, 

466 F.3d at 883). 

 At one point in his opinion, the ALJ noted that “the claimant presented to the hearing 

with the cane; however, there was no evidence that the claimant’s cane was medically 

necessary prior to the established onset date. Moreover, the claimant testified that she did 

not start using this cane until December 2015.” (Tr. at 28). The ALJ did not explain 
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whether he was simply noting that the use of a cane did not support her symptom testimony 

during the period of non-disability, or if instead, he was using it as evidence that she was 

malingering. In any event, the ALJ determined that she was disabled for the period when 

Ms. Cancanon used the cane, so it is not particularly relevant to her symptom testimony as 

to the disputed period here. 

 C. The ALJ’s Evaluation of Vanessa Spatoliatore 

To discount the testimony of a lay witness, the ALJ “must give reasons that are 

germane to each witness.” Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993). The 

Commissioner concedes that most of the reasons the ALJ gave for discounting Ms. 

Spatoliatore’s testimony were improper. (Doc. 20 at 22). The only disputed issue is 

whether the ALJ can discredit a lay witness, solely because she has a “pecuniary interest” 

in the proceedings. While a pecuniary interest, in combination with other discrediting 

factors, may be enough to discredit the testimony of a lay witness, it is not sufficient by 

itself to do so. See Valentine v. Comm’r of Soc. Security Admin., 574 F.3d 685, 694 (9th 

Cir. 2009). If it were, lay testimony that was given by a close family member who lived 

with the claimant could be discredited solely on that basis. Because the ALJ gave no other 

valid reasons for discrediting Ms. Spatoliatore’s testimony, his decision to give her 

testimony “little weight” was in error. 

 D. Harmful Error 

If an ALJ errs, the decision need not be remanded or reversed if it is clear from the 

record that the error is “inconsequential to the ultimate nondisability determination.” 

Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (citations omitted); Molina, 674 

F.3d at 1115 (an error is harmless so long as there remains substantial evidence supporting 

the ALJ's decision and the error “does not negate the validity of the ALJ's ultimate 

conclusion”) (citations omitted). The extent of the errors in the ALJ’s consideration of 

physician’s opinion testimony, claimant’s testimony, and the lay witness testimony 

substantially negates the validity of the ALJ’s conclusion. The Court finds that the ALJ 

committed harmful error. 
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 E. Remand for Additional Proceedings

When a court finds that the ALJ committed harmful error, the Social Security Act 

“makes clear that courts are empowered to . . . modify[] or reverse a decision by the 

Commissioner ‘with or without remanding the case for a rehearing.’ ” Garrison v. Colvin, 

759 F.3d 995, 1019 (9th Cir. 2014) (quoting § 405(g)). “[T]he proper course, except in 

rare circumstances, is to remand to the agency for additional investigation or explanation.” 

Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014) (citation 

omitted). 

Additionally, the Court hesitates to consider how the ALJ would reweigh the 

evidence, reevaluate the physicians’ opinions and symptom testimony, or explain the more 

general statements from the opinion. “[T]he decision on disability rests with the ALJ and 

the Commissioner of the Social Security Administration in the first instance, not with a 

district court.” Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015) (citing 20 C.F.R. § 

404.1527(d)(1)-(3)). And, the Court cannot speculate on the ALJ's reasoning or make “post 

hoc rationalizations that attempt to intuit what the adjudicator may have been thinking.” 

Bray v. Comm’r of Soc. Sec. Admin, 554 F.3d 1219, 1225 (9th Cir. 2009). 

CONCLUSION

 The ALJ’s decision is not supported by substantial evidence. The ALJ rejected the 

opinion of Claimant’s treating physician and the agency’s own examining physician but 

failed to provide specific and legitimate reasons for doing so. The ALJ’s rejection of 

Claimant’s credibility was not supported by substantial evidence. Claimant’s daily 

activities were not sufficient to support a finding of non-disability and general statements 

of a lack of objective medical evidence are not sufficient. Therefore, the Court remands to 

the ALJ for further consideration in line with this decision. 

/ / / 

/ / / 

/ / / 

/ / / 
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 IT IS THEREFORE ORDERED that the ALJ’s decision is vacated and remanded. 

The Clerk of Court is directed to remand this matter for further proceedings. 

 Dated this 8th day of March, 2019.